SMRK Investment & Finance Private Limited Vs

Rajasekhar V.K., Member (Judicial)

The court convened by video conference today.

The instant petition has been filed under Sections 230 to 232 and other relevant provisions of the Companies Act, 2013 and the rules framed there under for sanction of the Scheme of Amalgamation of Family Portfolio Management Private Limited (Transferor Company No. 1), Sriram Commodities Private Limited (Transferor Company No. 2), Sri Ram Tie-Up Private Limited (Transferor Company No. 3), Sankalp Vincom Private Limited (Transferor Company No. 4), Rose Goods Private Limited (Transferor Company No. 5), Naman Impex Private Limited (Transferor Company No. 6), Crystal Vintrade Private Limited (Transferor Company No. 7), Saraf Hi-Tech Industries Private Limited (Transferor Company No. 8), Beach Sand Mineral Industries Private Limited (Transferor Company No. 9), Forum Realtors Private Limited (Transferor Company No. 10), Sheer Properties Private Limited (Transferor Company No. 11), Ionosphere Properties Private Limited (Transferor Company No. 12) with SMRK Investment & Finance Private Limited (Transferee Company). Transfer Date or Appointed Date being 01st April, 2020 pursuant to Section 230 to 232 of the Companies Act, 21013 and Rules made thereunder in the manner and on the terms and conditions stated in the said Scheme of Amalgamation.

By an order dated 19th March, 2021 in Company Application No. C.A. (CAA) No. 1506/KB/2020 this Tribunal made the following directions with regard to meetings of Shareholders and Creditors under section 230 (1) of the Act:-

a) Meeting Dispensed:

Meetings of the Equity Shareholders of all the Applicant Companies, Unsecured Creditors of the Applicant Company Nos. 1 to 10, 12 and 13 were dispensed with in view of the consent received by the Shareholders of all the Applicant Companies and Unsecured Creditors of Applicant Company Nos. 1 to 10, 12 and 13 have respectively given their consent to the Scheme by way of Affidavits.

b) Meetings directed to be held:

The Tribunal was pleased to direct the meeting of the Secured Creditor of the Transferor Company No. 12 / Applicant Company No. 13 to be convened and held for the purpose of considering and, if thought fit, approving, with or without modification, the proposed Scheme of Amalgamation. The said order inter alia directed that Ms. Sudarshana Dutta, Advocate should act as Chairperson for the said meeting of the Secured Creditor of the Transferor Company No. 12 / Applicant Company No. 13.

c) No meetings required:

The Applicant Company No. 11 has NIL Unsecured Creditors and the Applicant Company Nos. 1 to 12 has NIL Secured Creditors. The NIL Secured and Unsecured Creditors have been verified by the Auditors' Certificate.

It is further stated that the Notice of the said meeting was served by hand delivery at the respective address on 22nd day of April, 2021 to the Secured Creditor of the Applicant Company No. 13 as required by the said order together with a copy each of the Scheme of Amalgamation and the Statement required under section 230 of the Companies Act, 2013 and a form of Proxy.

It is further stated that the Notice of the said meeting was also advertised, separately, as directed by the said order once each in ""Business Standard", Kolkata in its issue dated 09.04.2021 and in "Aajkaal", Kolkata in its issue dated 09.04.2021.

The Learned Counsel for the Petitioners further submits that in compliance with Section 230(5) of the Companies Act, 2013 and the said order dated 19th March, 2021 made in Company Application No. C.A. (CAA) No. 1506/KB/2020 notice alongwith all accompanying documents have already been served on the Statutory Authorities, as directed by the said order viz upon Regional Director Eastern Region, Registrar of Companies, Official Liquidator, Income tax Department having jurisdiction over the respective companies, Reserve Bank of India by hand and by Speed Post at their respective addresses on 12th April, 2021 and 13th April, 2021 respectively. Affidavits of Compliance have been duly filed with the NCLT department on 06.05.2021.

It is further stated that on 07th May, 2021 the said meeting of the Secured Creditor of Transferor Company No. 12 / Applicant Company No. 13 was held at 4/1, Red Cross Place, 3rd Floor, Kolkata - 700001 and duly convened in accordance with the said order.

It is further stated that Ms. Sudarshana Dutta, Advocate acted as the Chairperson for the said meeting of the Secured Creditor of the Transferor Company No. 12 / Applicant Company No. 13. The said meeting was attended in person by a Secured Creditor having a total claim of Rs. 2,09,08,623/-(constituting 100% of the total value of the Secured Creditor). The said Scheme was taken as received, read and understood by the said Secured Creditor attending the said meeting. The said meeting unanimously approved the said Scheme without any modification.

It is further stated that the Chairperson of the aforesaid meeting has reported the results of the said meeting to this Tribunal. True copy of the said report together with the affidavit is annexed with the petition and marked as Annexure "AT".

It is further stated in the petition that the exchange ratio of shares of the Applicant Companies have been fixed and reasonable basis and on the basis of the Valuation Report prepared by Ms. Harsha Saraf, Registered Valuer, a copy whereof is annexed with the petition and masked as Annexure "AU". A certificate from the Transferee Company's Auditors stating that the accounting treatment is in conformity with the Accounting Standard under Section 133 is annexed with the petition and marked as Annexure "AV".

It is further stated in the petition that no one will be prejudiced if the said Scheme of Amalgamation is sanctioned and the sanction of the said Scheme will benefit and will be in the interest of the said Companies, their Shareholders, Creditors, employees and all concerned.

Heard the Learned Counsels for the Applicant Companies and perused the documents submitted by the applicants, the following are ordered:

a) Upon perusing the records and documents in the instant proceedings and considering the submissions made on behalf of the applicants, we admit the instant petition and fix the final date of hearing on 09.11.2021.

b) At least 10 (Ten) clear days before the said date fixed for hearing, the applicants shall cause notice of hearing to be advertised once in "Business Standard" in English newspaper and "Aajkal" in Bengali newspaper in Kolkata as per Rule 16(1) of the Companies (Compromises, Arrangements and Amalgamation) Rules, 2016 ("CAA Rules").

c) Another notice pursuant to Section 230(5) of the Companies Act, 2013 along with accompanying documents, including the copies of the aforesaid Scheme and statement under the provisions of the Companies Act, 2013, as sent earlier, shall be served again on the aforesaid Statutory Authorities namely (a) Central government through Regional Director, Eastern Region, Ministry of corporate Affairs, Kolkata; (b) Registrar of Companies, West Bengal; (c) Official Liquidator, High Court at Calcutta; (d) Reserve Bank of India; (e) the concerned Income Tax Authority having jurisdiction over the respective applicant companies and such other relevant and sectorial regulators/authorities, if applicable, which are likely to be affected by the proposed Scheme by sending the same to them by hand delivery through special messenger or by post or by email within one week from the date of receiving this order. The notice shall specify the next date of hearing of the petition, as aforesaid, and state that representation, if any, and if not already filed, should be filed before this Tribunal not later than 7 (Seven) days before the next date of hearing of the petition and a copy of such representation should be simultaneously sent to the Authorised Representative of the said applicants. If no such representation is received by the Tribunal within such period, it shall be presumed that such Authorities have no representation to make on the said Scheme. Such notice shall be sent in Form No. CAA3 of the CAA Rules with necessary variations, incorporating the directions herein.

d) The Notice shall specify that representations, if any, should be filed before this Tribunal within 30 days of date of receipt of the notice with a copy of such representations being sent simultaneously to the applicants and/or their Authorized Representatives. If no such representation is received by the Tribunal within the said period, it shall be presumed that such authorities have no representations to make on the Scheme of Amalgamation.

e) The applicants to file an affidavit confirming compliance of the abovementioned directions of this Tribunal, 3 (Three) days before the next date of hearing.

f) The applicants may also file their rejoinder affidavits dealing with the objections/observations, if any, of the Authorities, 2 (Two) days before the next date of hearing.

Certified copy of the order may be issued, if applied for, upon compliance with all the requisite formalities.