M/S Ever Shine Appliances Private Limited vs Registrar Of Companies

The Present Application is filed separately by M/s EVER SHINE APPLIANCES PRIVATE LIMIT aEnDd M/s CRYSTAL INTERIOR PRODUCTS PRIVATE LIMITED the Applicant Companies under Section 230 to 232 of the Companies Act, 2013 for dispensation/ convening of the meetings of the Unsecured Creditors, Secured Creditors and Equity Shareholders of the Applicant Companies for the purpose of consideration of the Scheme of Arrangement in the nature of Amalgamation of M/s EVER SHINE APPLIANCES PRIVATE LIMIT E(âD€œTransferor Company”) with M/s CRYSTAL INTERIOR PRODUCTS PRIVATE LIMIT E(âD€œTransferee Company”) and their respective shareholders and creditors.

The registered office of the Applicant Companies is situated in the state of Gujarat, and hence, the Applicant Companies are under the Jurisdiction of National Company Law Tribunal, Bench at Ahmedabad.

The Applicant Companies are empowered by its Memorandum of Association to enter into Scheme of Arrangement. Copies of the Memorandum of Association are placed on record.

It has been submitted by the applicant companies that the amalgamation of the Transferor Company with the Transferee Company would inter alia have the following advantages-

i. To streamline the current organization structure and to realize commercial synergies.

ii. Achieving operational and management efficiency.

iii. Consolidation and simplification of the group structure.

iv. Enhancement of net worth of the combined business to capitalize on future growth potential.

v. Optimal utilization of resources resulting in the reduction in operational and compliance cost;

vi. Elimination of multiple entities in the group; which will eliminate duplication of administrative functions and reduction in the multiplicity of legal and regulatory compliances required at present to be carried out by the Transferor Company and the Transferee Company.

The Board of Directors of Applicant Transferor Company in the meeting held on 09.12.2020, passed a resolution approving the proposed Scheme. The Applicant Transferor Company has filed its audited balance sheet for the period ended on 31st March 2020 and un-audited Balance Sheet for the period ended 31.10.2020 as well a Certificate dated 20.12.2020 issued by its Chartered Accountant, i.e. CA Sonam J. Kachara, Proprietor of SONAM ZAVERI & ASSOCIATES, Chartered Accountant, Surat certifying compliance with Section 133 of the Companies Act, 2013.

The Board of Directors of Applicant Transferee Company in the meeting held on 09.12.2020, passed a resolution approving the proposed Scheme. The Applicant Transferee Company has filed its audited balance sheet for the period ended on 31st March 2020 and un-audited Balance Sheet for the period ended 31.10.2020 as well a Certificate dated 05.12.2020 issued by Chartered Accountant, i.e. CA Hiral G Kikani, Proprietor of M/S HIRAL KIKANI 85 CO., Chartered Accountant, Surat certifying compliance with Section 133 of the Companies Act, 2013.

The Applicant Companies have submitted that no investigation or proceedings against the Applicant Companies under Section 210 to 226 of the Companies Act, 2013 are pending.

The Applicant Companies have further submitted that the provisions of the Competition Act, 2002 are not applicable in the present case. Hence, no notice is required to be served to the Competition Commission of India.

The counsel of the applicant companies appeared and submitted that there are the following details of shareholders and creditors of the applicant companies;

I. As on 31.10.2010, the applicant Transferor Company has 13 (Thirteen) Equity Shareholders. All the equity shareholders of the applicant transferor company have given their consent affidavit for the proposed scheme of amalgamation.

II. As on 31.10.2010, the applicant Transferee Company has 14 (Fourteen) Equity Shareholders. All the equity shareholders of the applicant transferee company have given their consent affidavit for the proposed scheme of amalgamation.

III. It is stated that as per the books of account of the applicant transferor company as on 17.02.2021, the applicant transferor company has 2 secured creditors. Both the secured creditors of the applicant transferor company have given their consent affidavit for the proposed scheme of amalgamation.

IV. It is stated that as per the books of account of the applicant transferee company as on 17.02.2021, the applicant transferee company has 1 secured creditor. The secured creditor of the applicant transferee company has given their consent affidavit for the proposed scheme of amalgamation.

V. It is stated that as per the books of account of the Applicant Transferor Company as on 31.01.2021, the Applicant Transferor company has.about 68 (Sixty

Eight) unsecured creditors.

VI. It is stated that as per the books of account of the applicant Transferee Company as on 31.01.2021, the applicant transferee company has about 73 (Seventy Three ) unsecured creditors.

The counsel of the applicant companies has appeared and prayed that the meetings of the shareholders and secured creditors of both the applicant companies may kindly be dispensed within the light of consent affidavits have been given by all the secured creditors and shareholders of the applicant companies, and further, prayed that this Tribunal may direct to hold and convene the meetings of unsecured creditor both the applicant companies for the considering and approving the scheme of v amalgamation with or without modification (s).

Heard learned Advocate for the Applicant companies. Perused the application and perused the documents of records. It appears that the present application has complied with under section 230-232 of the companies Act, 2013 and rules framed thereunder. Hence the present application is allowed with the following directions;

Order

I. In view of the consent affidavits of all equity shareholders and secured creditors, the meetings of the Equity Shareholders and Secured Creditors of the applicant companies are dispensed with.

II. Considering that there are several unsecured creditors, it is ordered that it would be expedient to convene a meeting of the unsecured creditors of the applicant transferor company shall be convened and held on 22nd Day of July, 2021 at 4.00 P.M. at the Registered office of the Company situated at Plot No 41, Gidc, Ichhapore, Opp. Ongc, Sachin Hajira Road, Bhatpore, Surat - 394510, Gujarat India for the purpose of considering and, if thought fit, approving the proposed schemed of amalgamation with or without modification. The meeting should be physically conducted as well as through video conferencing or other Audio Visual means or other means as may be permitted under law.

III. Considering that there are several unsecured creditors, it is ordered that it would be expedient to convene meetings of Unsecured creditors of the applicant transferee company which shall be convened and held on the 22nd Day of July 2021 at 3.00 P.M. at the Registered office of the Company situated at Plot No 41, Gidc, Ichhapore, Opp. ONGC, Sachin Hajira Road, Bhatpore, Surat - 394510, Gujarat India for the purpose of considering and, if thought fit, approving the proposed schemed of amalgamation with or without modification. The meeting should be physically conducted as well as through video conferencing or other Audio1 Visual means or other means as may be permitted under law.

IV. In view of the recent circulars of the Ministry of Corporate Affairs; viz, Circular No. 14 of 2020 dated 8th April 2020, Circular No. 17 of 2020 dated 13th April 2020, and Circular No. 20 of 2020 dated 5th May 2020, the meeting is permitted to be convened and conducted through video conferencing or other Audio Visual means or other means as may be permitted under law.

V. At the aforesaid meeting of Unsecured creditors of the Applicant companies, voting shall be carried out through ballot/polling paper at the venue of the meeting.

VI. At least one month before by 22nd Day of July 2021 i.e. the date of the aforesaid meetings, an advertisement about the convening of the said meeting indicating the day, the date, the place, and the time as aforesaid, shall be published in English newspaper “Business Standard” and translation thereof in gujarati newspaper “Gujarat Guardian”. The publication shall indicate the time within which copies of the scheme shall be made available to the concerned persons free of charge from the registered office of the Applicant Companies. The publication shall also indicate that the statement required to be furnished pursuant to Section 102 of the Act read with Section 230 to 232 of the Act and the prescribed form of proxy can be obtained free of charge at the registered office of the Applicant Companies in accordance with the second proviso to sub-section (3) of Section 230 and Rule 7 of the Companies (CAA) Rules, 2016.

VII. In addition to publication, at least one month before the date of the meeting of Unsecured Creditors to be held as aforesaid, a notice convening the said meeting, indicating the day, date, place, and time, as aforesaid, together with a copy of the scheme, a copy of the statement required to be furnished pursuant to Section 102 of the Act read with Section 230 to 232 and Rule 6 of the Companies (CAA) Rules, shall be sent to each of the Unsecured Creditors of the Applicant Companies at their respective registered or last known addresses either by Registered post or Speed Post, Airmail or E-mail or by Courier or by Hand Delivery. The Notices shall be sent to Unsecured Creditors of the Applicant Companies with reference to the list of the persons appearing on the record of the Applicant Companies as on 08.06.2021.

VIII. Shri Safwan Kolsawala, Independent Practicing Chartered Accountant, and failing him, Shri Hiral Kikani, Independent Practicing Chartered Accountant, shall be the Chairman of the aforesaid meeting of the Unsecured creditors of the applicant companies to be held on 22nd Day of July 2021 and in respect of any adjournment or adjournments thereof.

IX. Shri Ashok B Patel, Independent Practicing Chartered Accountant and failing him Shri Saaurabh Jhaveri, Practising Company Secretary shall act as a Scrutinizer for the aforesaid meetings.

X. The Chairman appointed for the aforesaid meetings shall issue the advertisements and send out the notices of the meetings referred to above. The Chairman is free to avail the services of the Applicant Companies or any agency for carrying out the aforesaid directions.

XI. The Chairman shall have all the powers under the respective Article of Association of the Applicant Companies and also under the Rules in relation to the conduct of j meetings, including for deciding any procedural questions j that may arise at the meetings or adjournment(s) to thej aforesaid scheme or resolution, if any proposed at the aforesaid meeting by any person(s) and to ascertain the decision of the sense of the meeting of the Unsecured Creditors by polling paper/ballot.

XII. It is however clarified that in view of Para A (x) of the MCA Circular No. 14/2020 dated 8th April 2020, that in case of meeting through video conference or other audiovisual means, the voting through Proxy shall not be permitted. However, voting through Authorized Representative is permitted. The quorum for the meeting of unsecured creditors of both the applicant companies shall be 5 present in person or. by an authorized representative. Further, if a quorum is not present within half an hour from the time appointed for holding a meeting of the Applicant Companies, the present member shall be the quorum.

XIV. The value of the Unsecured Creditors shall be in accordance with the records or registers of the Applicant Companies as on 08.06.2021 and where the entries in the records or registers are disputed, the Chairman of the meeting shall determine the number or value, as the case may be for the purpose of the meeting.

XV. The Chairman shall file an affidavit of not less than 7(seven) days before the date fixed for the holding of the meetings and to report to this Tribunal that the directions regarding issuance of notices and advertisement of the meetings have been duly complied with as per Rule 12 of the Companies (CAA) Rules, 2016.

XVI. It is further ordered that the Chairman shall report to the Tribunal on the result of the meetings in FORM No. CAA- 4 along with the affidavit, as per Rule 14 of the Companies (CAA) Rules, 2016 in FORM No. CAA 4 within 7 days. In compliance with subsection (5) of Section 230 and Rule 8 of the Companies (CAA) Rules 2016, the Applicant- Companies shall send a notice in Form No. CAA. 3 disclosures mentioned under Rule 6, to (i) the Central Government through the Regional Director, North Western Region, (ii) the Registrar of Companies, Gujarat, and (iii) concerned Income Tax authorities, and (iv) Official Liquidator stating that representations, if any, to be made by them shall be made within a period of 30 days from the date of receipt of such notice, failing which it shall be presumed that they have no objection to make on the proposed scheme. The said notice shall be sent forthwith by registered post or by speed post or by courier or by hand delivery at the office of the authority as required by sub- rule(2) of Rule 8 of the Companies (CAA) Rules, 2016. The aforesaid authorities, who desire to make any representation under subsection (5) of Section 230, shall send the same to the Tribunal within a period of 30 days from the date of receipt of such notice, failing which it will be deemed that they have no representation to make on the proposed arrangement.

XVIII. The applicant companies are further directed to file an affidavit and report to this Tribunal that the directions regarding the issuance of notices under subsection (5) of Section 230 of the Act have been duly complied with by the Applicant Companies.

XIX. With the above directions, the instant Company Application is disposed of.