M/S Anamika Metal Private Limited vs Registrar of Companies

P.S.N Prasad. Hon'ble Member (Judicial)

This Joint application has been filed by the Applicant Companies under sections 230 and 232 of the Companies Act, 2013 read with the Company (Compromises, Arrangements and Amalgamations) Rules, 2016 and the National Company Law Tribunal Rules, 2016, for the purpose of approving the Scheme of Amalgamation, as contemplated between the Transferor Companies with Transferee Company.

All the applicant companies have their registered offices which lie within the jurisdiction of this Tribunal.

A perusal of the petition discloses that the Applicant Companies (Applicant Nos. 1-2) and Transferee Company had filed the first motion application bearing CA(CAA)-56(ND)2020. The Tribunal vide its order dated 26.11.2020 had dispensed with the meetings of the equity shareholders, secured or unsecured creditors in all of the applicant companies.

The report of the statutory auditors certifying that the Accounting Standards as required u/s 133 of the Companies Act 2013 had been adhered to is on record.

The applicant companies are group companies belonging to the same management. The MERGER is therefore sought to be justified for the following reasons:

a. Simply management structure, leading to better administration and a reduction in costs from more focused operational efforts, rationalization , standardization and simplification of business and compliance processes, the elimination of duplication and rationalization of administrative expenses.

b.  Providing flexibility in the overall organizational. Structure operations thus enabling it to achieve operational and management efficiency.

c.  Combine the resources of the entities for execution of the business plan and achieving the business goals;

d.  Combine the resources of the entities so that it enables both the companies to show higher net worth and derive business benefit.

The Appointed date is 1st January, 2021.

The applicant companies have now initiated the Second Motion. An affidavit dated 16.02.2021 discloses that the petitioners have effected publication in the daily newspapers "Business Standard" in English and Hindi, (Delhi Edition) both dated 05.02.2021 inviting objections if any to the proposed Scheme of Amalgamation. The affidavit further discloses that due notice of the proposed scheme had been served on the Registrar of Companies, Regional Director, Northern Region, Income Tax Dept, and the Official Liquidator in compliance with the order of the Tribunal.

Pursuant to the Publication in the daily newspapers, for listing of the matter before this Bench, no objector has appeared before us.

Additionally, it has been deposed that no objection to the proposed Scheme has been received by the Applicant Companies or their counsel.

We have heard the counsels for the petitioners and also considered the representation made by the Regional Director, Northern Region. It is submitted in the report dated 26.03.2021 that neither any prosecution has been filed nor any inspection or investigation has been conducted in respect of petitioner companies.

No observation has been made by the Official Liquidator in its report dated 23.02.2021. It is also submitted that the scheme would not be against public policy or detrimental to the interest of the Shareholders.

In respect of Income Tax Department, an affidavit dated 31.03.2021 has been filed by the Transferee company stating that there is no objection received from the Income Tax department till date and there are no dues pending in respect of any assessment year to the Income Tax department by any of the petitioner companies.

In view of the foregoing, upon considering the approval accorded by the members and creditors of all companies to the proposed Scheme, and no objections being raised by the office of the Regional Director or the Income Tax Dept, there appears to be no impediment in granting sanction to the Scheme. Consequently, sanction is hereby granted to the Scheme under sections 230-232 of the Companies Act, 2013. The sanctioned Scheme of amalgamation shall be binding on the Transferor and the Transferee Companies and on all their respective shareholders and creditors. The Petitioners shall also be bound to comply with the statutory requirements in accordance with law.

Notwithstanding the above, if there is any deficiency found or, violation committed qua any enactment, statutory rule or regulation, the sanction granted by this court to the scheme will not come in the way of action being taken, albeit, in accordance with law, against the concerned persons, directors and officials of both the petitioner companies.

While approving the Scheme as above, we further clarify that this order should not be construed as an order in any way granting exemption from payment of stamp duty, Statutory dues or any other charges, if any, and payment in accordance with law or in respect to any permission/ compliance with any other requirement which may be specifically required under any law.

This tribunal doth further order that upon scheme of Amalgamation by way of Merger coming into effect;

a.  That Transferor Companies shall stand dissolved without following the process of winding up.

b.  That the entire business, properties and assets of the Transferor companies, be transferred without further act or deed to the Transferee company and accordingly the same shall, pursuant to section 232 of the Act, be transferred to and vest in the Transferee company, but subject nevertheless to all charges now affecting the same;

c.  That all the assets and liabilities including Income Tax and all other Statutory dues, if any, of the Transferor companies, be transferred without further act or deed to the Transferee company and accordingly the same shall pursuant to section 232 of the Act, be transferred to and become the liability and duty of the transferee company;

d.  All employees of the Transferor Companies in service on the effective date shall become the, emplpyees of the Transferee Company on and from such date without ctay break or interruption in service and upon terms and conditions not less favorable than those subsidiary with the Transferor Company on that date,

e. That all proceedings now pending by or against the transferor companies, be continued by or against the transferee company;

That petitioners shall within thirty days of the date of the receipt of this order cause a certified copy of this order to be delivered to the Registrar of Companies for registration and on such certified copy being so delivered, the transferor companies shall be dissolved and the Registrar of Companies shall place all documents relating to the transferor company and registered with them and shall consolidate the files of the companies, is accordingly duly approved and sanctioned in terms of the above.

That any person interested shall be at liberty to apply to the Tribunal in the above matter for any directions that may be necessary.

The petition stands disposed of in the above terms. Let copy of the order be served to the parties.