IN THE NATIONAL COMPANY LAW TRIBUNAL,

MUMBAI BENCH, COURT II

C.P. (CAA) 996/MB-II/2020

IN
C.A.(CAA) 1067/MB-II/2019

Under Section 230 to 232 and other

applicable provisions of the
Companies Act, 2013

IN THE MATTER OF

The Scheme of Arrangement and

Amalgamation of Protrans Supply
Chain Management Private Limited
… (‘Transferor Company I’)
Ag-Vet Genetics Private Limited
… (Transferor Company II)
with Baramati Agro Limited
… (Transferee Company’)
and their respective shareholders
Protrans Supply Chain
Management Private
Limited
… Petitioner Company No. 1 / Transferor Company
AND
Ag-Vet Genetics Private Limited
… Petitioner Company No. 2 / Transferee Company
Baramati Agro Limited
… Petitioner Company No. 3 / Transferee Company

Order Pronounced on: 20.09.2021

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Coram:
Hon’ble Member (Judicial) : Mr. Ashok Kumar Borah
Hon’ble Member (Technical) : Mr. Shyam Babu Gautam

Appearances:

For the Petitioner : Mr. Hemant Sethi, Ms

Vidisha Poonja i/b Hemant
Sethi & Co., Advocates
For the Regional Director (WR) : Ms. Rupa Sutar, Deputy
Director

ORDER

Per: Shyam Babu Gautam, Member Technical

1. The court is convened by video conferencing today.

2. Heard the Learned Counsel for the Petitioner Companies and the
representative of the Regional Director (Western Region), Ministry
of Corporate Affairs, Mumbai. No objector has come before this
Tribunal to oppose the Scheme and nor has any party
controverted any averments made in the Petition to the said
Scheme.

3. The sanction of this Tribunal is sought under Sections 230 to 232

and other applicable provisions of the Companies Act, 2013 to
the Scheme of Arrangement and Amalgamation of Protrans
Supply Chain Management Private Limited (Transferor
Company/Petitioner Company I), Ag-Vet Genetics Private Limited
(Transferor Company/Petitioner Company II )with Baramati Agro
Limited (the Transferee Company/Petitioner Company III) and
their respective shareholders.

4. The Counsel for the Petitioners state that the Petitioner Company
I is presently engaged in the Business of Logistics &

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Transportation, Petitioner Company II is engaged in the business

of Buying, selling, and dealing in poultry, seeds and agricultural
products and Petitioner Company III is engaged in the business
of farming, agriculture, horticulture dairy, poultry, sugar and
farm produce and other allied activities.

5. The Learned Counsel for the Petitioner Companies states that the
Petitioner Companies believe that the amalgamation would
benefit them and its stake holders on account of following
reasons:

i. Transferor Company I & II have certain assets / business which

include land at certain convenient location and are specialized
transport vehicles used in transport services and has related
infrastructures. The proposed merger will create a synergy to
Transferor as well as Transferee which will enable these business
activities to sustain as well as grow at a faster pace.

ii. The merger of the Transferor Company I and Transferor

Company II (herein after collectively referred as Transferor
Companies) with the Transferee Company shall provide
greater financial strength to the businesses of the Transferor
Companies. The financial resources of the Companies will be
conveniently merged and pooled together leading to a more
effective and centralized management and reduction of
administrative and manpower expenses and overheads,
which are presently being multiplicated because of separate
entities.

iii. The merger of the Transferor Companies with the Transferee

Company shall create a company having diversified portfolio
of businesses.

iv. Cost savings are expected to flow from more focused

operational efforts, standardization and simplification of
business processes, and the elimination of duplication, and
rationalization of administrative expenses.

v. Achieving economies of scale.

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vi. The proposed arrangement will provide greater integration

and flexibility to Transferee Company and strengthen its
position in terms of asset base, revenues & service range. It
would also maximize returns to the shareholders.

vii. The Transferee Company is having 21,675 Shareholders

holding A Class Equity Shares. Out of 21,675, approximately
21,000 are shareholders holding small amount of equity
shares in the Transferee Company. The smaller shareholders
of the Transferee Company have been requesting for regular
dividends on their investments since they are not interested in
seeking management control or running the operations of the
Transferee Company. Considering the shareholding pattern of
the Transferee Company it is difficult to pass on the benefit of
dividend to these small shareholders. The Transferee
Company had received requests from some of its smaller
shareholders to redeem their investments within a fixed
timeframe and also to start paying dividends on such
investments on a regular basis. In view of this, it is proposed
to convert certain A class Equity Shares into 9% non-
cumulative optionally convertible redeemable Preference
shares of Rs 10/- each.

6. The Petitioner Companies have approved the said Scheme by

passing the Board Resolutions at their respective board meeting
held on 25th February, 2019 which are annexed to the Company
Scheme Petition.

7. The Learned Counsel for the Petitioner Companies state that the
Joint Petition has been filed in consonance with the order dated
11th June 2020 passed by the National Company Law Tribunal,
Mumbai Bench in the Company Application bearing
C.A.(C.A.A.)/1067/MB/2019.

8. The Learned Counsel appearing on behalf of the Petitioner

Companies further states that the Petitioner Companies have
complied with all requirements as per directions of this Tribunal
and they have filed necessary affidavits of compliance. Moreover,
the Petitioner Companies undertake to comply with all the
statutory requirements if any, as required under the Companies

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Act, 2013 and the Rules made there under whichever is

applicable. The said undertaking is accepted.

9. The Regional Director has filed a Report dated 09th day of

December 2020, based on the report issued by ROC, Pune,
stating therein, save and except as stated in paragraph IV, it
appears that the Scheme is not prejudicial to the interest of
shareholders and public. In paragraph IV of the said Report, the
Regional Director has stated that: -

IV. The observations of the Regional Director on the proposed

Scheme to be considered by the Hon’ble NCLT are as under:

(a) In compliance of AS-14 (Ind AS-103), the Petitioner Companies shall

pass such accounting entries which are necessary in connection with
the Scheme to comply with other applicable Accounting Standards
such as AS-5 (Ind AS-8) etc.

(b) As per definition of the Scheme,

“Appointed Date” For the purpose of this Scheme and for

Income Tax Act, 1961, the Appointed Date” means 1st April,
2018.

“Effective Date” means the last of the dates on which the

certified or authenticated copy of the Order of the NCLT or any
other Competent Authority, as the case may be, sanctioning the
Scheme are filed with the Registrar of Companies by the
Transferor Companies and by the Transferee Company. Any
references in this Scheme to the date of “coming into effect of
this Scheme” or “effectiveness of this Scheme” or “Scheme
taking effect” shall mean the Effective Date; Further, the
Petitioners may be asked to comply with the requirements and
clarified vide circular no. F. No. 7/12/2019/CL-1 dated
21.08.2019 issued by the Ministry of Corporate Affairs.

(c) Petitioner Company have to undertake to comply with Section

232(3)(i) of the Companies Act, 2013, where the transferor
company is dissolved, the fee, if any, paid by the transferor
company on its authorized capital shall be sett-off against any
fees payable by the transferee company on its authorized
capital subsequent to the amalgamation and therefore,

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petitioners to affirm, that they comply the provisions of the

section.

(d) The Petitioner Company in the clause 12 of the Scheme inter

alia mentioned that, upon coming into effect of the Scheme, the
main Objects in the memorandum of association of each
Transferor Company shall be added to the main objects of the
memorandum of association of the Transferee Company, to the
extent such objects are not already covered by those of the
Transferee Company. In this regards, the Deponent prays that,
the Hon’ble Tribunal may decide the matter on merit with
compliance of section 13 and other applicable provisions of the
Companies Act, 2013.

(e) As per MCA portal one complaint is pending against Baramati

Agro Limited, Petitioner Transferee Company which was
referred by SEBI, and on the basis of that complaint o/o ROC
Pune conducted suo moto inquiry and submitted their report,
same is under examination.

(f) ROC, Pune vide Report dated 14.10.2020 has interalia

mentioned below:-

i. As stated in para 9 above, the part D of the Petition contains

conversion of equity shares into preference shares which is
not permissible to issue Redeemable Preference Shares
against existing equity shares as its value, terms, rights are
different and cannot be terms as same kinds of shares to
exchange in ratio for consideration. Further , Ministry vide
letter no, 03/08/2019. CL V, dated 27th July, 2020 has
stated that one litigation in on going w.r.t. conversion of
equity shares into preference shares and vice versa whereby
reclassification of such type was rejected by ROC, Delhi and
has also asked for comments on the conversion of Equity
shares into preference shares or vice versa. It is submitted
that the equity shareholders are having rights different to
that of the preference shareholders which include voting
rights. Further, the instant scheme is placed before member
of the transferee company having only 48.45% of value which
is not representing majority. Hence such conversion many be
considered undesirable.

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ii. Annual Return for the F.Y. 2017-18 the Annual Return of the
transferee company vide SRN H41657149 is under status
“Pending for upload to investor details”. As the Company has
not filed the required documents, it has violated provisions of
section 92 of the companies Act, 2013.

iii. Balance Sheet of Transferee Company as follows:

31.03.2018 Form PG 243:-

Inter-Corporate deposit form Transferor I – 320341209
Interest on ICD received – 40137947
Interest accrued on ICD from Transferor I – 72145395
Receipt of services from Transferor I – 5060149
From Ag-Vet Genetics Transferor II – 239225
Rendering services from Transferor I – 13200000
From Ag-Vet Genetics Transferor II – 180196
Sale of Goods
Ag-Vet Genetis Transferor I – 15860
Reimbursement of expenses from Transferor I – 70324
Payable in outstanding Balances from Transferor I – 1632499
Receivable in outstanding balance from Ag-Vet Genetics
Transferor II – 15860
Investment
Non-current investment Transferor I – 10000
Corporate guarantee to Transferor I – 160000000
From the above it is seen that there are several transaction
entered into by the petitioner companies amongst themselves.
However, the transactions are not correctly recorded by all the
companies.
For instance, the inter-corporate Deposits taken by transferee
Company from transferor Company is Rs. 32.03 Crores (Refer
point no. 12 of page 243 of the petition). Whereas in the balance
sheet of the transferor company, the loans & advances are only
Rs. 1.60 crores. Thus, there is a clear mismatch. Moreover, the
same has been mentioned under liability by the transferor
company.

Further, the corporate guarantee given by the transferee company

to the Transferor-I is Rs. 16 crores, However, the same is not

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disclosed by the transferor in its financial statements nor in notes

to accounts. Hence the veracity and true & correct picture of the
financials is not clear and hence interest of shareholders and
creditors many be taken into consideration while deciding the
application on its merits.

10. In response to the report of the Regional Director, the Petitioner

Companies have filed Affidavit in Rejoinder dated 11th December,
2020 and have clarified as under:-

a. Apropos observations made in paragraph IV(a) of the Report of

the Regional Director are concerned, the Petitioner Companies
undertake that in addition to compliance of AS – 14 (IND AS-
103), the Transferee Company shall pass such Accounting
entries, which are necessary in connection with the Scheme to
comply with other applicable Accounting Standards such as
AS-5 (IND-AS-8) etc. to the extent applicable.

b. Apropos the observations made in paragraph IV (b) of the

Report of Regional Director is concerned, the Petitioner
Companies undertake and confirm that, the Scheme shall be
operative w.e.f. 1st April, 2018 as mentioned in the scheme.
Accordingly, the effective date is not in contravention with the
provisions of section 232(6) of the Companies Act, 2013. It is
further undertaken that the Petitioner Companies will comply
with the requirements and clarifications issued vide Circular
No. 7/12/2019/CL-1 dated 21.08.2019 issued by the
Ministry of Corporate Affairs.

c. Apropos observations made in paragraph IV (c) of the Report

of the Regional Director are concerned, the Transferee
Company undertakes that the Authorized Share Capital of
Transferor Companies shall be merged with that of the
Transferee Company in accordance with the provision of
Section 232(3)(i) of the Companies Act, 2013.

d. Apropos observations made in paragraph IV (d) of the Report

of the Regional Director are concerned, the Transferee
Company undertakes that the main objects of each Transferor
Company shall be added to the main objects of the
memorandum of association of transferee company, to the

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extent such objects are not already covered by those of the

Transferee Company and comply with the provisions of
Section 13 and other applicable provisions of the Companies
Act, 2013 if any.

e. Apropos observations made in paragraph IV (e) of the Report

of the Regional Director are concerned, the said suo moto
inquiry of the o/o ROC, Pune is under examination and yet to
be completed, further the said inquiry is related to Transferee
Company which is going to continue in existence and not
going to get dissolved unlike Transferor Companies. The
Transferee Company/ Petitioner Company III undertakes that,
it would provide all necessary information and explanation to
complete the said inquiry as and when called for.

f. Apropos observations made in paragraph IV(f) (i) of the report

of Regional Director is concerned, the petitioner Companies
state that the interpretation and reference of the ROC Pune is
incorrect. The Petitioner Companies further state that the
conversion of shares from one type to another, for example
from Equity shares to Preference Shares, is not barred by any
provision of the law, and in fact and in law, such conversion
only amounts to reorganization of the Share Capital of the
Companies which is permissible under section 61 of the
Companies Act 2013. In accordance with the relevant
provisions of the law and the judicial precedents being relied
upon by the Petitioner Companies, a Scheme of Compromise
or Arrangement may involve increase, consolidation, or sub-
division of shares or reduction of share capital. Therefore, the
conversion of equity shares into preference shares as sought
by the Petitioners under the Scheme cannot be deemed to be
impermissible. In reply to the comments of o/o ROC Pune the
Petitioner Companies submit as follows;

i. Pursuant to section 43 of the Companies Act, 2013 both

equity share capital and preference share capital appear in
the balance sheet under “Share Capital” and as per
provisions of Section 43 of the Companies Act 2013 there can
be only two classes of shares viz. Equity and Preference and
combination of two depict the total share capital. When
shares of one class are converted into another class (for

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instance, equity shares into preference or vice versa) and

value of the paid-up share capital does not undergo any
change, the subscribed and paid-up capital remains
unchanged; only the nomenclature of shares undergo
change.

ii. Section 230 of the Companies Act 2013 (“the Act”) contains
provisions concerning compromise or make arrangements
with creditors and members. According to subsection (1) of
section 230, where a compromise or arrangement is
proposed—

(a) between a company and its creditors or any class of them; or

(b) between a company and its members or any class of

them,

iii. Under section 230 of the Act, a scheme of Compromise or

Arrangement may be in the form of reorganization of share
capital of a company and the Explanation appended to
subsection (1) gives an inclusive definition of the expression
‘arrangement ’as including ‘reorganization of share capital’.

When a word is defined to ‘mean’ something, the definition is prima

facie restrictive and exhaustive, whereas, where the word defined
is declared to ‘include’ a particular meaning, the definition is
prima facie extensive or inclusive. The word ‘means’ is restrictive
and the expression ‘includes’ is expansive. Both the words may
however be used simultaneously, and in such a case, it is the
restricted meaning which should primarily be assigned. But when
the expansive meaning can be applied without violence to the Act,
that meaning may be given. “It is common for a statute to contain
a provision that certain words and phrases shall, when used in the
statute, bear particular meanings. Sometimes, it is provided that a
word shall “mean” what the definition section says it shall mean:
in this case the word is restricted to the scope indicated in the
definition section. Sometimes, however, the word “include” is used
in order to enlarge the meaning of words or phrases occurring in
the body of the statute; and when it is so used, these words or
phrases must be construed as comprehending, not only such things

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as they signify according to their natural import but also those

things which the interpretation clause declares that they shall
include. In other words, the word in respect of which “includes” is
used bears both its extended statutory meaning in its ordinary,
popular, and natural sense whenever that word be properly
applicable (Regional Director, Employees' State Insurance
Corporation v High Land Coffee Works of P.F.X. Saldanha &
Sons 1991 (3) SCR 307: AIR 1992 SC 129: 1991 (3) SCC 617. )

iv. The Supreme Court in SLP No 984 of 2006 Rajendra

Prasad Gupta verses Prakash Chandra Mishra & Ors
held “Courts are not to act upon principal that every
procedure is to be taken as prohibited unless it is expressly
provided for by the Code , but on the converse principal that
every procedure is to be understood as permissible till it is
shown to be prohibited by the law. As a matter of general
principal prohibition cannot be presumed”.

v. As held by the Hon’ble Bombay High Court in Vasant

Investment Corporation Ltd CA No 178 of 1978 every
alteration of the memorandum of association required under
a scheme of compromise or arrangement cannot be looked
upon as an ultra vires act. In the first place, under section
391, the Court has very wide power of reconstituting
company. When, for example, a scheme is proposed which
involves a restructuring of the capital of the company – as in
a case where the rights of the various shareholders are
sought to be altered – it can also be said that under the
existing memorandum and articles of association of the
company, the rights of the shareholders are fixed in a certain
way and to change them would involve sanctioning an act
which is ultra vires the memorandum and articles of
association. Strictly speaking, such an act may be considered
as ultra vires. But, in fact, the very purpose of a scheme of
reconstruction is to make suitable alterations in the structure
of the company to enable it to function. A scheme, therefore,
which contains such ultra vires provisions can be sanctioned,
and is in fact, sanctioned in a number of cases.

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vi. With regard to MCA letter refereed by the o/o ROC Pune viz.
letter no, 03/08/2019. CL V, dated 27th July, 2020 the
Petitioner Companies submitted that as per the settled
principle by the Hon’ble Supreme court in several cases the
said letter cannot be binding on the court or Tribunal or
Petitioner companies in this case unless the same are made
part of substantive law or delegated legislation and in
support of the same view the Petitioner Companies would like
to highlight following case laws;

(a) In Union of India V. Rakesh Kumar (2001) 4 SCC 309,

the Supreme Court held Government cannot amend or
substitute statutory the rules by administrative
instructions, but if the rules are silent on any particular
point the Government can fill the gaps and supplement the
rules by issuing instruction not inconsistent with the rules.

(b) In Shikshan Prasarak Mandal V. Ramesh Narayan

2016 (3) ABR 86 (FB) no circular or view of the executive
bind the court when interpreting a legal provision.

(c) As regards Office Memorandum (OM) Lokur J. observed

that an OM cannot be used to interpret a provision of law;
no importance can be given to an OM. An OM can always
be withdrawn modify or amended on the whim of the
executive Government reference Mohan Lal V. Principal
Secretary 2014 AIR SCW 329.

(d) In Bengal Iron Corporation & Anr. V. Commercial

Tax Officer & Ors. 1993 (47) ECR 23 (SC), it was held
that Government’s clarification and circular are merely
their understanding of the statutory provisions, and are
not binding on quasi-judicial authorities. It is only for the
courts to interpret the statues.

(e) The Supreme Court in the matter of Subhash Ramkumar

Bind and Ors. Vs State of Maharashtra held that an
administrative instruction issued cannot substitute with
the requirement of a notification in the official gazette and
that it cannot possibly be a substitute for a notification
which stands as a requirement of the Statute.

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(f) A similar view was perceived in the case of Rajinder

Singh vs The State of Punjab and [Link] the
Supreme Court held that that; (Page 3 @Para 8).

“The settled position of law is that no Government Order,

Notification or Circular can be a substitute of the statutory
rules framed with the authority of law.”

(g) In so far as the issue of whether the Equity Shareholders

can be reclassified as Preference Shareholders is
concerned the Counsel for the Petitioner Companies
submits that the word “arrangement” has not been
defined under the Act however, the term in itself carries a
very wide import. The Division Bench of Punjab &
Haryana High Court in the matter of Q.H Talbros Ltd.
inter-alia observed that; (Page 10 Para @14);

“A Merger and a Demerger are not the only components of

a composite scheme of arrangement. The term
arrangement in section 391 is of wide amplitude. It is
defined in the Act. Corporate affair are often complex
involving the interplay of innumerable factors including
those relating to policy matters, management and
financial aspects and legal issues. The Scheme often
requires considerations of various enactments and
adherence to various legal provisions not only under the
Companies Act but also under other enactments.
Financial aspects are not limited in their nature or in
scope. Each component is studied, and the resultant
arrangement is arrived at after taking all of them into
consideration. There are consequential acts to be
performed as an integral part of the scheme. Many of
them, therefore, involve other arrangements such as
reduction in share capital and the amendment of the
Memorandum of Association and the Articles of
Association of the company. These very components can
constitute one composite scheme/arrangement under
Section 391 of the Act. The legislature, therefore advisedly
did not restrict scope of the term arrangement by defining
it. A view to the contrary would place an unwarranted
fetter upon the activities of a company and restrict the

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choice of it’s members, creditors, debentures holders and

other stakeholders.”

(h) Further, the Chancery Division in Re Savoy Hotels Ltd (

Page 652 @Para g) ;

“..there can be no doubt that the word ‘arrangement’ in s

206 has for many years been treated as being one of very
wide import….beyond that it is neither necessary nor
desirable to attempt a definition of arrangement”

g. Apropos observation made in paragraph IV(f) (ii) of the report

of Regional Director is concerned, the Petitioner Companies
state that for the FY 2017-18 the Petitioner Company III had
filed the Annual return vide SRN H41657149. However due to
technical issue pertaining validating excel file for investors
details viz. non availability of “Client ID numbers” for Non-
Dematerialised shares, the Petitioner Company III could not
upload the investor details i.e. List of Shareholders in the
prescribed format (Excel Sheet). However, considering the
ongoing “Companies Fresh Start Scheme 2020” (CFSS)
introduced by the Ministry of Corporate Affairs (MCA) vide
General Circular no. 12/2020 issued on 30th March, 2020
and extended till 31st December, 2020, the Petitioner
Company III has filed form MGT-7 along with investor details
under the CFSS, Vide SRN, R69246130. Copy of the MCA
receipt evidencing payment of fees and Email received from
MCA21 Administrator confirming approval status of MGT-7
filed under CFSS is enclosed herewith. Further the Petitioner
Company III shall comply with filing of Immunity form as
prescribed under CFSS as and when made available by the
MCA.

h. Apropos observation made in paragraph IV (f)(iii) of the report

of Regional Director is concerned, the Petitioner Companies
state that :-
i. The para pertaining to Inter Corporate Deposits (ICD)
appears to be typographical error as per the said report it is
mentioned that Petitioner Company III (Transferee

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Company) has taken Inter Corporate Deposit (ICD) from

Transferor Company I whereas Petitioner Company
III (Transferee Company) has extended ICD to Transferor
Company I. Also the ICD amounts are matching and the
same are disclosed in the notes to accounts of the respective
financial statements reference Note. No. B(4)(b) ‘Current
Liabilities’ for transferor Company I and Reference Note No.
2.58 (D) 12 for Transferee Company.
ii. The Petitioner Companies further state that figures of
‘Interest on ICD received’ is also matching and the same are
disclosed in the financial statement of Transferor Company
I reference Note. No. B.17(b) (A) (4) Related Party
Transactions_ ‘Interest on ICD and Note No. 2.58 (D) 9 for
Transferee Company’.
iii. The Petitioner Company III states that figures of ‘Interest on
ICD received’ is also matching and the same are disclosed
in the financial statement of Transferor Company I reference
Note. No. B.4.1.(C) (C) ‘Interest payable on ICD’ and Note No.
2.58 (D) 10 for Transferee Company.
iv. The Petitioner Companies state that figures of ‘Receipt of
services’ is having minor difference with Transfer Company
I, Financial Statement Reference Note. No. B.17.(B).(A) (1)
rendering of Services for transferor Company I and Note No.
2.58 (D) 4 for transferee Company. The said difference is
due pending reconciliation of accounts.
v. The Petitioner Companies state that figures of
‘Reimbursement of expenses’ is having minor difference
with Transfer Company I, Financial Statement reference
note No. B.17.(B).(A) (2) and Note No. 2.58 (D) 11 for
transferee company. The said difference is due pending
reconciliation of accounts.
vi. The Petitioner Companies state that incase of Noncurrent –
Investment made by Petitioner Company III in Transferor
Company I, the Transferor Company I has not given details
of the same as part of its Share capital since the
shareholding is less than 5% and hence not applicable.
vii. The Petitioner Companies state that the amounts referred to
in the para IV(f) iii with regard to Transferor Company II and
Transferee Company more particularly described below ;

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a. Receipt of services from Transferor Company II Rs.

2,39,225/-
b. Sale of goods to Transferor Company Rs. 15,860/-

are mentioned by the Transferor Company II in the financial

statement , the same are covered in the profit and loss
account. It is pertinent to note that for Transferee company
the transactions entered in to with Transferor Company II
were a related party transaction pursuant to section 2 (76)
Companies Act, 2013 however for transferor company II, the
Transferee Company was not a related party pursuant to
section 2 (76) of the Companies Act, 2013 consequently the
necessary disclosure was made by the Transferee
Company only.
Further the amount referred to in the Report regarding
rendering of services to Transferor Company II of Rs.
1,80,196/- appears to be an error since the same amount is
pertaining to another company viz. Ag-Vet Marketing
Limited which not part of the Scheme.

i. Apropos observation made in paragraph IV (f)(iii) of the report

of Regional Director is concerned in respect corporate
guarantee, the Petitioner Companies states that Corporate
Guarantee of Rs.16,00,00,000/- is given to
Transferor Company I against the loan taken from Yes Bank
Ltd by Transferor Company I in the FY 2014-15. Considering
its nature, it is appearing in the Contingent Liability of
Transferee Company as upon failure in repayment of the said
loan by Transferor Company I, Transferee Company would be
liable to repay the same. The status of said term loan as on
31.03.2018 is appearing in the financials of Transferor
Company in note no.B.4. The Petitioner Company III states
that apart from minor differences due to reconciliation of
accounts and time difference in finalisation of Accounts by
Transferor Companies and Transferee Company, financials
are disclosing true & correct picture.

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 IN THE NATIONAL COMPANY LAW TRIBUNAL
MUMBAI BENCH, COURT-II
C.P. (CAA) 996/MB-II/2020
IN
C.A.(CAA) 1067/MB-II/2019

11. The Regional Director has filed its Supplementary Report dated
16th December, 2020 taking into consideration report issued by
ROC Pune and stated that the Petitioner Companies have replied
satisfactory to para IV a to e and the other matters be considered
on merit. Further the Regional Director had stated in the report
that the Regional Director is not convinced with the reply filed by
the Petitioner Companies with regard to MCA letter refereed by
the ROC Pune viz. letter no, 03/08/2019. CL V, dated 27th July,
2020.

12. The observations made by the Regional Director mentioned in

para 9 above have been explained by the Petitioner Companies in
para 10 above. Further, the Petitioner Companies have also filed
affidavit in rejoinder dated 11 December 2020 to the report of
Regional Director. The clarifications and undertakings given by
the Petitioner Companies are accepted by the Tribunal.

13. The Official Liquidator has filed his report dated 08th October,
2020 inter alia, stating therein that the affairs of the Company
have not been conducted in a manner prejudicial to the interest
of its members or to the public interest.

14. No objections were received from the Jurisdictional Income Tax

Department of the Petitioner Companies.

15. The Petitioners through their Counsel submit that and all tax
issues arising out of the Scheme will be met and answered in
accordance with law.

16. From the material on record, the Scheme appears to be fair and
reasonable and is not contrary to public policy.

17. All the assets and liabilities including taxes and charges, if any
and duties of the Transferor Company, shall pursuant to section
232 of the Companies Act, 2013, be transferred to and become
the liabilities and duties of the Transferee Company.

18. Since all the requisite statutory compliances have been fulfilled
C.P. (CAA) 996/MB-II/2020 is made absolute in terms of prayer
clause of the Company Petition. The Transferor Companies are
ordered to be dissolved without winding up.

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 IN THE NATIONAL COMPANY LAW TRIBUNAL
MUMBAI BENCH, COURT-II
C.P. (CAA) 996/MB-II/2020
IN
C.A.(CAA) 1067/MB-II/2019

19. The Petitioners are directed to file a certified copy of this Order
along with the copy of Scheme with the concerned Registrar of
Companies, electronically, in e-form INC-28 within 30 days from
the date of receipt of the Order duly certified by the
Deputy/Assistant Registrar of Tribunal.

20. The Petitioners shall lodge a copy of this order duly certified by
the Deputy/Assistant Registrar of this Tribunal along with
Scheme, with the concerned Superintendent of Stamps for the
purpose of adjudication of stamp duty payable, if any, within a
period of 60 working days from the date of the receipt of the order
by the Transferee Company.

21. Any person interested shall be at liberty to apply to this Tribunal

in the above matter for any directions that may be necessary.

Sd/- Sd/-

SHYAM BABU GAUTAM ASHOK KUMAR BORAH

MEMBER (TECHNICAL) MEMBER (JUDICIAL)

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