Ulkavahini Investments Limited vs Registrar of Companies

,

Subrata Kumar Dash, Member (Technical)",

This is a Joint Second Motion Application filed by Petitioner Companies namely;U LKAVAHINI INVESTMENTS LIMIT E(DTransferor,

Company No.1/Petitioner Company No.1);E DEN MOTORS LIMITE D(Transferor Company No.2/Petitioner Company No.2);S BR AUTO,

COMPONENTS LIMITE D(Transferor Company No.3/Petitioner Company No.3);G JS COMPONENTS MANUFACTURING LIMITED,

(Transferor Company No.4/Petitioner Company No.4);S AM MANUFACTURING LIMITE (DTransferor Company No.5/Petitioner Company,

No.5); SUMAN AUTO PARTS LIMITED (Transferor Company No.6/Petitioner Company No.A6)S; M EXIM LIMITE D(Transferor Company,

No.7/Petitioner Company No.7); SPHERE AUTO PRIVATE LIMITE D(Transferor Company No.8/Petitioner Company No.8);D EEPAK,

MANUFACTURING LIMITE D(Transferor Company No.9/Petitioner Company No.9) withA PJ INVESTMENTS PRIVATE LIMITED,

(Transferee Company/Petitioner Company No.10) under Section 230-232 of Companies Act, 2013 (the Act) and other applicable provisions of the",

Act read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 (the Rules).",

The Petitioner Companies have prayed for sanctioning of the Scheme of Amalgamation between the respective companies. The said Scheme is,

attached as Annexure-A to the application.,

The Petitioner Companies filed First Motion Application bearing CA (CAA)No.12/Chd/Hry/2020 before this Tribunal for seeking directions for,

dispensing with the meetings of equity shareholders, secured creditors and unsecured creditors of the Applicant Companies. The First motion",

application was disposed of vide order dated 22.09.2020, with directions to dispense with the meetings of equity shareholders, secured creditors and",

unsecured creditors of the Applicant Companies as the written consent/affidavits of the equity shareholders, secured and unsecured creditors of the",

Applicant Companies were filed and placed on record.,

The main objects, date of incorporation, authorized and paid-up share capital, and the rationale of the Scheme had been discussed in detail in the",

order dated 22.09.2020.,

In the second motion application proceedings, certain directions were issued by this Tribunal vide order dated 18.06.2021 and the same were",

complied by an affidavit of compliance filed vide diary No.01348/2 dt.15.07.2021 along with newspaper publications in ""Business Standard"" (English)",

and ""Business Standard"" (Hindi) both Haryana Edition on 06.07.2021. The original copies of the newspapers were attached as Annexure-B and C of",

the aforesaid affidavit. It was also stated in the affidavit filed vide Diary No.01348/2 dated 15.07.2021 that copies of notices were served upon the (a),

Central Government through Regional Director (Northern Region), Ministry of Corporate Affairs, (b) Registrar of Companies, NCT of Delhi and",

Haryana and Registrar of Companies, Punjab and Chandigarh, (c) the Official Liquidator, Punjab and Chandigarh, (d) Competition Commission of",

India (CCI) (e) Income Tax Department of all the Petitioner Companies. Copies of the acknowledged receipt of service of notice to statutory,

authorities were attached as Annexure ‘D’ to Annexure ‘I’ of the aforesaid affidavit.,

The affidavit with regard to the sectoral regulators of the Petitioner Companies from whom representation may be required for the sanction of the,

present Scheme of Amalgamation is filed vide Diary No.01348/01 dated 01.03.2021.,

It is also deposed by the authorised signatory of the petitioner companies that pursuant to publications made on 06.07.2021, none of the petitioner",

companies have received any objection with respect to this merger and there are no objectors as contemplated in sub-Section (4) of the Section 230 of,

the Act. The aforesaid affidavit is filed vide Diary No.01348/5 dated 01.12.2021.,

In response to the abovementioned notices, the statutory authorities have furnished their replies.",

9.1 As per the compliance affidavit filed vide Diary No.01348/2 dated 15.07.2021, the notices were also issued to the Central Government through",

Regional Director, Northern Region, Ministry of Corporate Affairs by the Petitioner Companies through by hand delivery. The acknowledgment",

receipt showing the duly service to the notices to the aforesaid statutory authority is attached as Annexure-D of the aforesaid affidavit. The notices,

were issued and no reply has been received from Central Government through Regional Director, Northern Region, Ministry of Corporate Affairs and",

on 02.12.2021, the following order was passed:-",

“Report from the Income Tax Department is placed on record. Learned counsel for the Income Tax Department has stated that there is nothing adverse against,

the petitioner companies. On the last date of hearing, vide order dated 22.10.2021, last opportunity was granted to Regional Director (Northern Region),",

Ministry of Corporate Affairs and concerned Registrar of Companies to file the reports but none has come forward and no report has been received so far, so it",

can be presumed that there is nothing adverse against the petitioner companies. Check list has already been filed. Learned counsel for the petitioner company is,

directed to file an undertaking for adjustment of the carry forward losses and also file the latest financial statements. List on 16.12.2021.â€​ (emphasis supplied),

In the absence of any report from RD, no observation is possible in this regard.",

9.2 Official Liquidator,

The Official Liquidator has filed his report vide Diary No.01348/3 dated 11.08.2021. The relevant part of the report is extracted below:,

As required by Section 143 (3) of the Act, we report that:",

Para (e) On the basis of the written representations received from the directors as on March 31, 2020 taken on record by the Board of Directors, none of the",

directors is disqualified as on March 31, 2020 from being appointed as a director in terms of Section 164(2) of the Act.",

Para (f) With respect to the other matters to be included in the Auditors’ Report in accordance with Rule 11 of the Companies (Audit and Auditors) Rules,",

2014, in our opinion and to the best of our information and according to the explanations given to us:",

i. According to information and explanation given to us the company has no pending litigations.,

ii. The Company has made provision, as required under the applicable law or accounting standards, for material foreseeable losses, if any, on long-term contracts",

including derivative contracts.,

iii. There were no amounts which were required to be transferred to the Investor Education and Protection Fund by the Company.,

It is clarified that the employees of the Transferor Companies who become employees of the Transferee Company by virtue of this Scheme, shall not be entitled to",

the employment policies and shall not be entitled to avail of any schemes and benefits that may be applicable and available to any of the employees of the,

Transferee Company unless otherwise determined by the Board of Directors of the Transferee Company. After Effective Date, the Transferee Company shall be",

entitled to vary the terms and conditions as to employment and remuneration of the employees of the Transferor Companies on the same basis as it may do for the,

employees of the Transferee Company.,

That as per Part IV Clause 21.1 (21) of the Scheme: In view of the fact that the Transferor Companies is a directly or indirectly wholly owned subsidiary,

companies of Transferee Company, upon the Scheme becoming effective, no shares will be issued/allotted under the Scheme by the Transferee Company to any",

person.,

That the Transferor Company NO.8 informed to this office vide letter dated 10.07.2021 that there are no pending cases against the company and there is no,

investigation/inspection is pending against the transferor company under the provisions of the Companies Act, 1956/2013 and any other matter is pending with",

the company.,

It is also stated in the report of the Official Liquidator that Transferor Company No.1 to 6, 8 & 9 and Transferee Company do not have any pending",

Name of the Company,Demand Outstanding (in Rs.)

Petitioner Company No.1,"A.Y. 2017-18 is ₹ 156/-

A.Y. 2018-19 is ₹ 1,290/-

Petitioner Company No.2,NIL

Petitioner Company No.3,"A.Y. 2014-15 is ₹8,18,830/- A.Y. 2017-18 is

₹90,300/- A.Y. 2018-19 is ₹1,20,890/-

Petitioner Company No.4,NIL

Petitioner Company No.5,"A.Y. 2019-20 is ₹1,560/-

Petitioner Company No.6,"A.Y. 2019-20 is

₹10,48,97 and ₹67,21,963/-

Petitioner Company No.7,NIL

Petitioner Company No.8,NIL

Petitioner Company No.9,"A.Y. 2002-03 is ₹1,534/-

Petitioner Company No.10,NA

Notwithstanding the submission that no investigation is pending against the petitioner companies, if there is any deficiency found or, violation",

committed qua any enactment, statutory rule or regulation, the sanction granted by this Tribunal will not come in the way of action being taken, albeit,",

in accordance with law, against the concerned persons, directors and officials of the petitioners.",

While approving the scheme as above, it is clarified that this order should not be construed as an order in any way granting exemption from",

payment of stamp duty, taxes or any other charges, if any, payment is due or required 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 DO FURTHER ORDER:,

(i) That all the property, rights and powers of the Transferor Companies be transferred, without further act or deed, to the Transferee Company and accordingly, the",

same shall pursuant to Sections 230 to 232 of the Companies Act, 2013, be transferred to and vested in the Transferee Company for all the estate and interest of the",

Transferor Companies but subject nevertheless to all charges now affecting the same;,

(ii) That all the liabilities and duties of the Transferor Companies be transferred, without further act or deed, to the Transferee Company and accordingly the same",

shall pursuant to Sections 230 to 232 of the Companies Act, 2013, be transferred to and become the liabilities and duties of the Transferee Company;",

(iii) That the Appointed Date for the scheme shall be 01.04.2019 as specified in the scheme;,

(iv) That the proceedings, if any, now pending by or against the Transferor Companies be continued by or against the Transferee Company;",

(v) That the employees of the Transferor Companies shall be transferred to the Transferee Company in terms of the 'Scheme';,

(vi) That the fee, if any, paid by the Transferor Companies on its authorized capital shall be set off against any fees payable by the Transferee Company on its",

authorized capital subsequent to the sanction of the 'Scheme';,

(vii) That the transferee company shall file the revised memorandum and articles of association with the Registrar of Companies, N.C.T. of Delhi & Haryana and",

further make the requisite payments of the differential fee (if any) for the enhancement of authorized capital of the transferee company; after setting off the fees paid,

by the transferor companies;,

(viii) That the Petitioner Companies shall, within 30 days after the date of 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 without undergoing the process of winding",

up. The concerned Registrar of Companies shall place all documents relating to the Transferor Companies registered with him on the file relating to the said,

Transferee Company, and the files relating to the Transferor Companies and Transferee Company shall be consolidated accordingly, as the case may be;",

(ix) That the Transferee Company shall deposit an amount of ₹50,000/-(Rupees Fifty Thousand Only) in favour of ""The Company Law Tribunal Bar Association""",

Chandigarh within a period of four weeks from the date of receipt of the certified copy of this order;,

(x) That any person interested shall be at liberty to apply to the Tribunal in the above matter for any directions that may be necessary;,

As per the above directions, Form No.CAA-7 of Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 formal orders be",

issued on the petitioners on the filing of the schedule of properties, i.e. (i) freehold property of the Transferor Companies (ii) leasehold property of the",

Transferor Companies by way of affidavit. Copy of this order be communicated to the Counsel for the Petitioners.,