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Judgment
Shyam Babu Gautam, Member (Technical)
The Counsel for the Applicant Companies states that the present arrangement under Section 230 to 232 of the Companies Act, 2013 is the Composite Scheme of Amalgamation of Highband Communications Private Limited (Transferor Company 1) and Vabha Realty & Infrastructure Private Limited (Transferor Company 2) and Vyadeshwar Technology Services Limited (Transferor Company 3) and Global Vantedge Private Limited (Transferor Company 4) and Vyadeshwar Venture Services Limited (Transferor Company 5/Transferee Company 1) and Vyadeshwar Financial Services Private Limited (Transferor Company 6) and Conservative Trading Private Limited (Transferor Company 7) with Prasudas Trading Private Limited (Transferee Company 2) and their respective Shareholders.
The Learned Counsel of the Applicant Companies submits that in the said Composite Scheme of Arrangement, there are 8 Companies involved. Out of the 8 Companies registered office of the Transferor Company 3 and Transferor Company 4 are situated at New Delhi, hence Jurisdiction for presenting the Application for considering the said Composite Scheme falls within the Hon’ble Tribunal, New Delhi, accordingly the Transferor Company 3 and the Transferor Company 4 has filed the Application with the NCLT, New Delhi bench on 31st Day of March, 2022 for seeking the direction for dispensation of the requirement from calling the meeting of the Equity Shareholders, Secured and Unsecured Creditors of the Transferor Company 3 and Transferor Company 4.
The Learned Counsel of the Applicant Companies further states that, pursuant to the Order passed by this Tribunal dated 19th April, 2022 in C.A.(CAA)/80/MB/2022 read with the Order dated 6th May, 2022 in CA 184/2022, directed to transfer the Company Scheme Application filed with the New Delhi bench for the Transferor Company 3 and Transferor 4 from NCLT, New Delhi Bench to NCLT, Mumbai bench, as it would be in interest of justice that process of Merger of all the 8 Companies i.e. involving entire Composite Scheme is considered in one go. As per the directions issued by this Tribunal, an Application for Transfer of both the Company was filed with the Principal Bench, New Delhi on 23rd Day of May, 2022, and the transfer of cases from NCLT, New Delhi bench to NCLT, Mumbai bench was allowed by the Principal Bench, New Delhi vide its Order dated 26th Day of May, 2022 in TA (Co. Act)-11(PB)/2022. Accordingly, the application for both the Transferor Company 3 and Transferor Company 4 stands transferred from NCLT, New Delhi bench to NCLT, Mumbai bench vide NCLT, New Delhi bench order dated 6th Day of June, 2022 passed in C.A. (CAA) No. 47/230/232/ND/2022.The said Companies were subsequently listed with this Bench on 3rd day of October, 2022 in Transfer Petition/1/MB/2022 and were taken on record by the Bench.
The Learned Counsel further submits that the Applicant Company 1 was incorporated in the year 1997 to carry on the business of to provide complete voice, data, image networking solutions, designing and consultancy and to implement networking infrastructure for internet, intranet and extranet cable network and to set up work station or install equipments for distribution of signals, telecast, broadcast, release, display, transmission, exhibition, through cable pay T.V. satellite, transponder or otherwise and to use network and equipment for communication via. satellite, cable or otherwise, to set up and operate professional T.V. network and to produce and export programmes for T.V. network. Currently the Applicant Company 1 is not engaged in any of the business of activities, thus it is proposed to Amalgamate the Applicant Company 1 in the Transferee Company 1 to achieve the objective of consolidation.
The Learned Counsel further submits that the Applicant Company 2 was incorporated in the year 2008 to carry on business to undertake the work of construction of buildings, houses, garages, halls, flats, office premises, shops, residential, accommodation, farm houses, townships, shopping malls, convenient shopping centers, godowns, warehouses, mills, factories, chawls, dwelling houses, roads, bridges, culverts, docks, harbors, piers, wharves, reservoirs, embankments etc. Currently the Applicant Company 2 is not engaged in any of the business of activities, thus it is proposed to Amalgamate the Applicant Company 2 in the Transferee Company 1 to achieve the objective of consolidation.
The Learned Counsel further submits that the Applicant Company 3 was incorporated in the year 2008 to carry on the business as consultants in the fields of Human Resource, staffing, recruitment, training, learning & development, management consulting, process planning, man power planning, selection and training, personnel development, behavioral sciences etc. Currently the Applicant Company 3 is not engaged in any of the business of activities, thus it is proposed to Amalgamate the Applicant Company 3 in Transferee Company 2 to achieve the objective of consolidation.
The Learned Counsel further submits that the Applicant Company 4 was incorporated in the year 1994 to carry on the business as financial, management consultants and provide advice, services, consultancy in various fields, general administrative, secretarial, commercial, financial, legal, economic, labour, industrial, public relations, scientific, technical, direct and indirect taxation and other levies, statistical, accountancy, project report, feasibility study and quality control and data processing. Currently the Applicant Company 4 is not engaged in any of the business of activities, thus it is proposed to Amalgamate the Applicant Company 4 in Transferee Company 2 to achieve the objective of consolidation.
The Learned Counsel further submits that the Applicant Company 5 was incorporated in the year 2005 to carry on business as traders, dealers, distributors, stockist, sellers, importers, exporters, dealers in commodities, agricultural produce, merchandise and goods etc. Currently the Applicant Company 5 is not engaged in any of the business of activities, thus it is proposed to Amalgamate the Applicant Company 5 in Transferee Company 2 to achieve the objective of consolidation.
The Learned Counsel further submits that the Applicant Company 6 was incorporated in the year 2007 to carry on the business as Traders, buyers, sellers merchants, wholesaler, distributers, suppliers of Commodities, merchandise including agriculture products and such other goods Act and their derivatives. No money circulation scheme shall be carried out by the Company. The Applicant Company 6 is currently engaged in the business of Trading in Derivatives.
The Learned Counsel further submits that the Applicant Company 1 in Transfer Petition/1/MB/2022 was incorporated in the year 2003 to carry on the business to establish Virtual private Networks (VPN’s) to establish call centers for clients in India and abroad and to take up contracts to manage and run call centers and also to remotely manage networks as managed services in India and abroad etc. Currently the said Applicant Company 1 is not engaged in any of the business of activities, thus it is proposed to amalgamate the said Applicant Company 1 in Transferee Company 1 to achieve the objective of consolidation.
The Learned Counsel further submits that the Applicant Company 2 in Transfer Petition/1/MB/2022 was incorporated in the year 2001 to carry on the business of collecting/following up of debts and recoveries and providing other ancillary services to Overseas and Indian clients through electronic means etc. Currently the said Applicant Company 2 is not engaged in any of the business of activities, thus it is proposed to amalgamate the said Applicant Company 2 in Transferee Company 1 to achieve the objective of consolidation.
The Counsel for the Applicant Companies submits that the Board of Directors of the Transferor Companies and Transferee Company in their respective meetings held on 17th Day of February, 2022 have approved the proposed Composite Scheme with the appointed date as 1st day of April, 2021. The Board Resolution approving the Scheme for the Applicant Companies is annexed as “Annexure G (Colly)” to the Company Scheme Application.
The Appointed Date for this Composite Scheme of Amalgamation is 1st day of April, 2021.
The Authorized, Issued, Subscribed and Paid-up Share Capital of the Applicant Companies as on 31st day of March, 2021 is as under:
a) The Authorized Share Capital of the Applicant Company 1 is Rs. 40,00,000/- divided into 2,00,000 Equity Shares of Rs.10/- each and 2,00,000 4% Redeemable Preference Shares of Rs. 10/- each. Issued, Subscribed and Paid-up Share Capital of the Applicant Company 1 is Rs. 13,16,530/- divided into 1,31,653 Equity Shares of Rs.10/- each fully paid-up.
b) The Authorized Share Capital of the Applicant Company 2 is Rs. 5,00,00,000/- divided into 50,00,000 Equity Shares of Rs.10/- each. Issued, Subscribed and Paid-up Share Capital of the Applicant Company 2 is Rs. 2,53,86,100/- divided into 25,38,610 Equity Shares of Rs.10/- each fully paid-up.
c) The Authorized Share Capital of the Applicant Company 3 is Rs. 61,00,00,000/-divided into 6,10,00,000 Equity Shares of Rs.10/-each. Issued, Subscribed and Paid-up Share Capital of the Applicant Company 3 is Rs. 51,66,53,930/- divided into 5,16,65,393 Equity Shares of Rs.10/- each fully paid-up.
d) The Authorized Share Capital of the Applicant Company 4 is Rs. 1,00,000/- divided into 10,000 Equity Shares of Rs.10/- each. Issued, Subscribed and Paid-up Share Capital of the Applicant Company 4 is Rs. 1,00,000/- divided into 10,000 Equity Shares of Rs.10/- each fully paid-up.
e) The Authorized Share Capital of the Applicant Company 5 is Rs. 5,00,000/- divided into 40,000 Equity Shares of Rs.10/- each and 10,000 Preference shares of Rs. 10/- each. Issued, Subscribed and Paid-up Share Capital of the Applicant Company 5 is Rs. 1,00,000/-divided into 10,000 Equity Shares of Rs.10/- each fully paid-up.
f) The Authorized Share Capital of the Applicant Company 6 is Rs. 4,00,000/- divided into 30,000 Equity Shares of Rs.10/- each and 10,000 Preference shares of Rs. 10/- each. Issued, Subscribed and Paid-up Share Capital of the Applicant Company 5 is Rs. 2,00,000/-divided into 10,000 Equity Shares of Rs.10/- each fully paid-up and 20,000 Equity Shares of Rs. 10 each, paid up Rs. 5 each.
g) The Authorized Share Capital of the Applicant Company 1 in Transfer Petition/1/MB/2022 is Rs. 50,00,00,000/- divided into 5,00,00,000 Equity Shares of Rs. 10/- each. Issued, Subscribed and Paid-up Share Capital of the said Applicant Company 1 is Rs. 35,00,56,100/- divided into 3,50,05,610 Equity Shares of Rs. 10/-each.
h) The Authorized Share Capital of the Applicant Company 2 in Transfer Petition/1/MB/2022 is Rs. 25,00,00,000/- divided into 2,50,00,000 Equity Shares of Rs. 10/- each. Issued, Subscribed and Paid-up Share Capital of the said Applicant Company 1 is Rs. 2,41,79,620/- divided into 24,17,962 Equity Shares of Rs.10/- each.
The Learned Counsel for Applicants submits that the consideration involved in this Composite Scheme of Amalgamation is based on the valuation report issued by M/s. R V Shah & Associates, Registered Valuer (SFA), IBBI Registration No.: IBBI/RV/06/2018/10240;
A. Consideration to the Equity Shareholders between the Transferor Company 1, Transferor Company 2, Transferor Company 3 and Transferor Company 4 and Transferee Company 1/ Transferor Company 5:
“As the Transferor Company 1, Transferor Company 2, Transferor Company 3 and Transferor Company 4 are the wholly-owned subsidiaries of the Transferee Company 1, no consideration shall be payable pursuant to the Composite Scheme of Amalgamation for the merger of the Transferor Company 1, Transferor Company 2, Transferor Company 3 and Transferor Company 4 with the Transferee Company 1, and the shares held by the Transferee Company 1 in the Transferor Company 1, Transferor Company 2, Transferor Company 3 and Transferor Company 4 shall stand cancelled without any further act, application or deed.”
B. Consideration to the Equity Shareholders between the Transferor Company 5, Transferor Company 6, Transferor Company 7 and Transferee Company 2:
To the Equity Shareholders of Transferor Company 5
“The Transferee Company 2 to issue and allot 1 (One), 1% Non-Cumulative Preference shares, having Nominal value of Rs. 10/- (Rupees Ten Only) each to the Equity Shareholders of Transferor Company 5.”
To the Equity Shareholders of Transferor Company 6
“The Transferee Company 2 to issue and allot 425 (Four Hundred and Twenty-Five), 1% Non-Cumulative Preference shares, having Nominal value of Rs. 10/- (Rupees Ten Only) each against 1 Equity Share of Rs.10/- each held in Transferor Company 6”
To the Equity Shareholders of Transferor Company 7
“The Transferee Company 2 to issue and allot 3000 (Three Thousand), 1% Non-Cumulative Preference shares, having Nominal value of Rs. 10/-(Rupees Ten Only) each against 1 Equity Share of Rs.10/- each held in Transferor Company 7”
C. Consideration to the Debenture Holders of Transferor Company 6 Transferor Company 7:
To the Debenture holders of Transferor Company 6
“The Transferee Company 2 shall pay full nominal amount i.e., Rs.100 per debenture against every outstanding debenture held in Transferor Company 6”
To the Debenture holders of Transferor Company 7
“The Transferee Company 2 shall pay full nominal amount i.e., Rs.100 per debenture against every outstanding debenture held in Transferor Company 7”
The Counsel for the applicant companies further submits that the rationale for the Scheme is as follows:
(i) All the Companies are under the same management, the Amalgamation of the Transferor Company 1, Transferor Company 2, Transferor Company 3 and Transferor Company 4 with the Transferee Company 1 and Amalgamation of Transferor Company 5/ Transferee Company 1, Transferor Company 6 and Transferor Company 7 with the Transferee Company 2 will remove inefficiencies and result in simplification, streamlining and optimization of the group structure and efficient administration;
(ii) Benefit Shareholders and other stakeholders of the respective companies by consolidating and simplifying the group structure, business operations, provide optimal utilization of various resources and eliminating cross holdings within the group;
(iii) Enhance growth prospects, reduce overheads, administrative, managerial and other costs and expenditure and remove inefficiency;
(iv) Result in improved shareholder value for the shareholders of the respective companies, thus providing a stronger and wider capital and financial base for future growth/expansion of the Transferee Company 2;
(v) Post-Amalgamation of Transferor Company 1, Transferor Company2, Transferor Company 3 and Transferor Company 4 with the Transferee Company 1 and the Amalgamation of Transferor Company 5/Transferee Company 1, Transferor Company 6 and Transferor Company 7 with the Transferee Company 2, all the Transferor Companies shall stand dissolved. Consequently, there would be lesser regulatory and legal compliance obligations including accounting, reporting requirements, statutory requirements, tax filings, company law requirements, etc. and therefore reduction in administrative costs.
All the Equity Shareholders of the Applicant Companies have given their consent in writing to the proposed Composite Scheme. In view of the consent affidavits filed by all the Equity Shareholders of the Applicant Companies, the meetings of the Equity Shareholders of the Applicant Companies, for the purpose of considering and, if thought fit, approving the proposed Composite Scheme with or without modification(s) are hereby dispensed with. The details as to list of shareholders along with the respective consent affidavits is as follows:
Sr. No
Name Company
of the
No. of
Equity shareholders
Total Share Capital (in
Rs.)
Annexure
Page No. and
Volume
1.
Applicant
Company
2
13,16,530/-
Annexure
466 –
1
J1 & J2
473
VOL III
2.
Applicant
Company
2
2,53,86,100/-
Annexure
494 –
2
L1 & L2
501
VOL III
3.
Applicant
Company
7
51,66,53,930/-
Annexure
525 –
3
N1 & N2
547
VOL III
4.
Applicant
Company
2
1,00,000/-
Annexure
575 –
4
P1 & P2
582
VOL IV
5.
Applicant
Company
2
1,00,000/-
Annexure
600 –
5
R1 & R2
607
VOL IV
6.
Applicant
6
Company
3
2,00,000/-
Annexure
T1 & T2
628 –
638
VOL IV
7.
Applicant Company
1 in Transfer Petition/1/MB/2022
7
35,00,56,100/-
Annexure A-7 & A- 8
196 –
228
VOL II
8.
Applicant Company
2 in Transfer Petition/1/MB/2022
2
2,41,79,620/-
Annexure 17 & 18
303 –
313
VOL II
The Counsel for the Applicant Companies submits that the Applicant Companies do not have any Secured Creditors; therefore, the question of convening and holding of the meeting of Secured Creditors of the Applicant Companies does not arise, the Statutory Auditors Certificate certifying Nil Secured Creditors in the Applicant Company 1, Applicant Company 2, Applicant Company 3, Applicant Company 4, Applicant Company 5 and Applicant Company 6 is annexed as “Annexure K1, M1, O1, Q1, S1, U” respectively to the Company Scheme application. Further the Statutory Auditors Certificate certifying Nil Secured Creditors in the Applicant Company 1 and Applicant Company 2 is annexed as “Annexure A-9” and “Annexure A-19”, respectively to the Company Scheme Application in Transfer Petition/1/MB/2022.
The Counsel for the Applicant Companies submits that all the Unsecured Creditors of the Applicant Companies have given their consent to the Proposed Company Scheme by way of consent affidavits. In view of this, the meetings of the Unsecured Creditors of the Applicant Companies deserve to be dispensed with. Accordingly, the meetings of Unsecured Creditors of the Applicant Companies are hereby dispensed with. The details of unsecured creditors as on 31st day of December, 2021 as to the list of unsecured creditors along with their consent affidavit is as follows:
Sr. No
Name Company
of the
No. of unsecured
creditors
Amount due (in Rs.)
Annexure
Page No. and
Volume
9.
Applicant 1
Company
6
1,43,54,331/-
Annexure K1 & K2
474 –
493
VOL III
10.
Applicant 2
Company
7
60,41,10,781/-
Annexure M1 & M2
502 –
524
VOL III
11.
Applicant 3
Company
8
2,60,20,02,468/-
Annexure O1 & O2
548 –
574
VOL IV
12.
Applicant 4
Company
5
7,42,05,000/-
Annexure Q1 & Q2
583 –
599
VOL IV
13.
Applicant 5
Company
6
6,64,585/-
Annexure S1 & S2
608 –
627
VOL IV
14.
Applicant 6
Company
Nil
-
Annexure
U
639
VOL IV
15.
Applicant Company
1 in Transfer Petition/1/MB/2022
2
1,65,10,35,693/-
Annexure A-10 &
A-
11(Colly)
230 –
239
VOL II
16.
Applicant Company
2 in Transfer Petition/1/MB/2022
4
38,30,90,944/-
Annexure A-20 & A-21 (Colly)
315 –
332
VOL II
The Applicant Company 1, Applicant Company 2, Applicant Company 5, Applicant Company 6, Applicant Company 7 and Applicant Company 8 to serve notices of the present Application complete with enclosures on – (1) The Central Government through the office of Regional Director (Western region), Ministry of Corporate Affairs, Mumbai; (2) Registrar of Companies, Maharashtra, Mumbai; (3) Income Tax Authority within whose jurisdiction the Applicant Companies are assessed to tax as mentioned hereunder:
Sr.
no
Applicant
Companies
PAN
Address of the Authority
1
Applicant Company 1
AAACH9764P
Ward 12(2)(1), Mumbai Income Tax Office, Aayakar Bhawan, Maharshi Karve Rd, New Marine Lines, Churchgate, Mumbai,
Maharashtra 400020
2
Applicant Company 2
AABCE9442J
Circle 3, Thane, Income Tax Office, Quereshi Mansion, Gokhale Rd, Naupada, Thane West, Thane,
Maharashtra 400602
3
Applicant Company 3
AAHCA3004A
Circle 6(1)(1), Mumbai Income Tax Office, Aayakar Bhawan, Maharshi Karve Rd, New Marine Lines, Churchgate, Mumbai,
Maharashtra 400020
4
Applicant Company 4
AAECA5080H
Circle 3, Thane, Income Tax Office, Quereshi Mansion, Gokhale Rd, Naupada, Thane West, Thane, Maharashtra 400602
5
Applicant Company 5
AAECP3534D
Ward 5(1)(1), Mumbai Income Tax Office, Aayakar Bhawan, Maharshi Karve Rd, New Marine Lines, Churchgate, Mumbai,
Maharashtra 400020
6
Applicant Company 6
AAFCA3143E
Ward 3 (2), Thane, Income Tax Office, Quereshi Mansion, Gokhale Rd, Naupada, Thane West, Thane, Maharashtra 400602
Pursuant to Section 230(5) of the Companies Act, 2013 and Rule 8 of the Companies (Compromises Arrangements and Amalgamations) Rules, 2016. If no response is received by the Tribunal from such authorities within 30 days of the date of receipt of the notice, it will be presumed that they have no objection to the proposed Composite Scheme. The aforesaid notices could be served by email/ registered post/ speed post/ courier/ hand delivery in any of the given mode as feasible with the Applicant Company 1, Applicant Company 2, Applicant Company 5, Applicant Company 6, Applicant Company 7 and Applicant Company 8.
The Transferor Company 1, Transferor Company 2, Transferor Company 6 and Transferor Company 7 are directed to serve notice along with copy of Scheme upon Official Liquidator, High Court Bombay. The Official Liquidator may submit his representations, if any, within a period of thirty (30) days from the date of the receipt of such notice to the Tribunal and a copy of such representation shall simultaneously be served upon to the Applicant Companies, failing which, it shall be presumed that the Official Liquidator has no representations to make on the proposals.
The Applicant Company 1, Applicant Company 2 in Transfer Petition/1/MB/2022 to serve notices of the present Application complete with enclosures on – (1) The Central Government through the office of Regional Director (Northern region), Ministry of Corporate Affairs, Delhi; (2) Registrar of Companies, Delhi and Haryana and (3) Income Tax Authority within whose jurisdiction the Applicant Company 1, Applicant Company 2 in Transfer Petition/1/MB/2022 are assessed to tax as mentioned hereunder:
Sr.
no
Applicant Companies
PAN
Address of the
Authority
1
Applicant Company 1 in Transfer Petition/1/MB/2022
AABCT8103B
Circle 1(1), Delhi,
C. R. Building, I P Estate 104B, Indraprashta Marg, New Delhi, 110095
2
Applicant Company 2 in Transfer
Petition/1/MB/2022
AABCR8435J
Ward 10(1), Delhi,
C. R. Building, I P Estate 104B, Indraprashta Marg, New Delhi, 110095
Pursuant to Section 230(5) of the Companies Act, 2013 and Rule 8 of the Companies (Compromises Arrangements and Amalgamations) Rules, 2016. If no response is received by the Tribunal from such authorities within 30 days of the date of receipt of the notice, it will be presumed that they have no objection to the proposed Composite Scheme. The aforesaid notices could be served by email/ registered post/ speed post/ courier/ hand delivery in any of the given mode as feasible with the Applicant Companies.
The Applicant Company 1 and Applicant Company 2 in Transfer Petition/1/MB/2022 are directed to serve notice along with copy of Scheme upon Official Liquidator, Delhi. The Official Liquidator may submit his representations, if any, within a period of thirty (30) days from the date of the receipt of such notice to the Tribunal and a copy of such representation shall simultaneously be served upon to the Applicant Companies, failing which, it shall be presumed that the Official Liquidator has no representations to make on the proposals.
The Applicant Companies shall host the notices directed herein, on their respective websites, if any.
That the Applicant Companies to file a joint Affidavit of Service with the Registry proving dispatch of notices to Regulatory Authorities as stated above, and report to this Tribunal that the directions have been duly complied with.
Pronounced today in open Court.