Malwa Renewable Energy Private Limited Vs

This is a Joint Second Motion Company Petition filed through authorized signatories, under Sections 230-232 and 66 of the Companies Act, 2013 read with the Companies (Compromise, Arrangements and Amalgamations) Rules, 2016, the National Company Law Tribunal Rules, 2016 and other applicable provisions, if any, seeking sanction to the proposed Scheme of Amalgamation between the Petitioner Companies namely; Malwa Renewable Energy Private Limited (Petitioner Company 1/ Transferor Company), and Alcograin Distilleries Private Limited (Petitioner Company 2/ Transferee Company), and their respective shareholders and creditors on a going concern basis and the dissolution of Petitioner company 1 without following the process of winding up. A copy of the said scheme of amalgamation is annexed as Annexure 1.

FACT OF THE CASE

The facts of the case, as stated in the Petition, are summarised as below:

(i) The Transferee Company is a wholly owned subsidiary of the Transferor Company.

(ii) The Petitioner Companies had jointly filed First Motion Application CA(CAA) no. 33/Chd/Chd/2023 and this tribunal vide order dated 30.08.2023 allowed the prayer for dispensation of meetings of equity shareholders, preference shareholders, debenture holders, secured and unsecured creditors of the petitioner companies in view of their consent in writing received by way of affidavits (Annexure A-12 to the Joint Petition) as follows:

Name of the Applicant Companies

Transferor Company

Transferee Company

Total

Consent

Total

Consent

Equity  shareholders

2

100%

2

100%

Preference Shareholders

2

100%

NIL

NA

Debenture Holder

2

100%

1

100%

Secured Creditors

NIL

NA

1

100%

Unsecured Creditors

NIL

NA

56

17 amounting to

93.17% in value

(iii) In the Second Motion Petition, the Petitioner Companies have prayed to:

a. Fix the date of hearing and direct publication of notice of hearing in the Chandigarh editions of the newspapers, Financial Express (English) and Jansatta (Hindi);

b. Direct joint service of the Petition for issuance of notice upon Regional Director (Northern Region), Ministry of Corporate Affairs; Registrar of Companies, Himachal Pradesh and Chandigarh; Official Liquidator attached to the Hon’ble High Court of Himachal Pradesh and Income Tax Department to file their report(s)/ affidavit(s);

The second motion checklist has been filed by the Petitioner Companies. The appointed date proposed is 01.04.2023 and the same is mentioned in the Scheme at page no. 67 of the Petition.

ANALYSIS AND FINDINGS

It is noted that both the Transferor and Transferee Companies are in the business of generation, transmission, distribution and conservation of energy by establishment, operation and maintenance of power plants. It is also noted from the website of West Bengal Pollution Board that that Transferee Company is setting up a 22 MW co-generation power plant at in Paschim Bardhaman District, West Bengal. In view of the above, the notice needs to be sent to West Bengal Electricity Regulatory Commission and such other power regulator, as may be applicable, based on the power purchase agreement/ location of the power plant of the Transferor and Transferee Companies.

It is noted that the Transferee Company is in the business of distillers, rectifiers etc. and to manufacture, purchase, sell, import, export etc. and deal in the country and foreign wines, whisky, spirit etc. and liquor commercial, industrial and absolute alcohols etc. It is also noted from the petition as well as the website of West Bengal Pollution Board that that Transferee Company is setting up a plant to produce 660 KLPD grain based distillery and 10 KLPD malt spirit. In view of the above, the notice needs to be sent to the regulator(s) dealing with the above business, as may be applicable, (e.g. Food Safety and Standards Authority, State Excise Department etc.)

Having regard to the above, before finally examining the matter for approval of the proposed amalgamation, this Tribunal directs the following-

I.  The next date of hearing of the petition shall be on 01.07.2024.

II. The notice of hearing shall be published, not less than 10 days before the next date of hearing in two newspapers, namely, “Financial express” in English language and “Jansatta” in Hindi language in Chandigarh Edition (for petitioner company 2) and “Financial Express” in English language and “Dainik Bhaskar” in Hindi language in Himachal Edition (for petitioner Company 1). The copy of the notice shall also be placed on the websites of the Petitioner Companies.

III. This notice is to enable the interested parties/ persons to raise their objections, if any, on the proposed Scheme of Amalgamation between the Petitioner Companies.

IV. In addition to the public notice, Petitioners shall serve the notice of petition, as required under 230(5) of the Act on the (i) Regional Director, Northern Region, Ministry of Corporate Affairs, B-2 Wing, Second Floor, Deen Dayal Antyodaya Bhawan, CGO Complex, New Delhi-110003 (ii) The Official Liquidator, attached to Hon’ble High Court of Himachal Pradesh, Corporate Bhawan, Plot No- 4 B, 2nd floor, Sector 27B, Madhya Marg, Chandigarh-160019 (iii) Registrar of Companies, Himachal Pradesh and Chandigarh, Corporate Bhawan, Plot No- 4 B, 1st Floor, Sector 27B, Madhya Marg, Chandigarh- 160019 (iv) The Income Tax Department, HP and Chandigarh through Nodal Officer- Principal Commissioner of Income Tax, NWR, Aaykar Bhawan, Sector- 17E, Chandigarh-160017 (v) West Bengal Electricity Regulatory Commission and such other power regulator, as may be applicable, based on the power purchase agreement/ location of the power plant of the Transferor and Transferee Companies (vi) Regulator(s) dealing with the Transferee Company business of distillers, rectifiers etc. and to manufacture, purchase, sell, import, export etc. and deal in the country and foreign wines, whisky, spirit etc. and liquor commercial, industrial and absolute alcohols etc., as may be applicable, (e.g. Food Safety and Standards Authority, State Excise Department etc.) and to such other Sectoral Regulatory Authorities, if any applicable, who are likely to be affected by the scheme, at least 30 days before the date fixed for hearing of the above petition. The above authorities are directed to send their representations if any, within thirty days from the date of receipt of such notice as per the provisions of Sub-Section 5 of Section 230 of the Companies Act, 2013. If the above authorities fail to make any representation within 30 days from the date of receipt of notice, it shall be presumed that they have no representations to make on the proposals.

V. The Petitioner Companies shall at least 7 days before the date of hearing of the Petition file an affidavit of service regarding newspaper publication with newspaper clippings as well as service of notices on the authorities specified above.

VI. Objections, if any, to the ‘Scheme’ contemplated by the authorities to whom notice has been given may be filed on or before the date of hearing fixed herein, failing which it will be considered that there is no objection to the approval of the ‘Scheme’ on the part of the authorities and this Tribunal will proceed in the matter, subject to other conditions being satisfied as may be applicable under the Companies Act, 2013 and relevant Rules framed thereunder.

VII. The Petitioner Companies shall individually comply with the proviso of section 232(3) or proviso to section 230(7) of the Companies Act, 2013, as may be applicable under the circumstances on or before the date fixed for hearing by filing the required certificate of the Company's auditor.

VIII. The Petitioner Companies shall also file an affidavit denoting the objections received from public pursuant to the publication of notice of hearing in the newspapers.

Let a copy of the order be served to the parties.