10.The main objects of Petitioner Company are to carry on the business of refiners, exporters, importers, distributors, traders, merchants, dealers, representatives, selling agents buying agents, repackers, wholesalers, retailers, suppliers and stockists of all kinds and varieties of surgical, medical and diagnostics equipments, medical kits, disposable non-disposable surgical instruments and kits; to provide medical services for investigation of all diseases by all means including X-rays, ultrasound, magnetic resonance or other such modalities as well as by bio-chemicals, clinical, pathological, micro-biological, bacteriological or electro-physiological means and to carry on the business of medical-surgical products in the areas of Asepsis/Infection control areas (surgical drapes and makes, sterilizers and sterilization monitoring products) in the assessment and therapy area (stethoscopes, monitoring electrodes, electro-surgical plates, radiation therapy) and in the wound management area (surgical tapes and dressing, skin closures and staplers) and to provide service and maintenance facility for the repair and preventive maintenance of all medical devices and equipment.

11.The main objects of the Transferee-Company are to engage in the business of designing, developing, engineering, manufacturing, producing, refining, processing, constructing, fabricating, assembling, remodeling, buying, acquiring, purchasing, importing, exporting, leasing, hiring, letting on hire, exchanging, assembling, modifying, altering, repairing, servicing devices, instruments, appliances, apparatus and the like in connection with medical, biomedical, surgical processing, health care, diagnosis, examination, checking, testing, dental and veterinary sciences distributing, marketing, selling, and in any and all ways dealing in all types of every and all kinds.

12.The Scheme also provides that all employees of Petitioner Company shall become the permanent employees of the Transferee-Company on the terms and conditions not less favorable than those on which they are engaged by the Transferor Company and without any interruption or break in service as a result of the Scheme etc.

13.It is further stated that the Scheme provides for merger of the entire business of the Petitioner Company with the Transferee-Company. The Scheme would expand the portfolio of innovative products and services, the Transferee-Company will be a pre-eminent leader in delivering therapy and procedural innovations to address the major disease impacting patients and healthcare costs around the world. With the combined synergies of the Petitioner Company and the Transferee-Company, the Transferee-Company will be able to provide a broader array of complementary therapies and solutions that can be packaged to drive more value and efficiency in healthcare systems. The Scheme shall enable pooling, and more efficient utilization of resources and ensure greater economies of scale, leading to reduction in overheads and other expenses and improvement in various operating parameters. Additionally, the reduction of the number of entities within the group and managerial over lapses will lead to the creation of a stronger base for future growth of the consolidated entity formed pursuant to the amalgamation of the Petitioner Company and Transferee-Company.

14.The salient features of the Scheme are as follows:

i) The appointed date under the Scheme is 26.08.2016.

ii) The Scheme proposes that upon the Scheme becoming effective and with effect from the Appointed Date, the Transferor Company with all its assets, liabilities, etc. shall be transferred to and be vested in the Transferee-Company as a going concern.

iii) The Scheme further provides that upon the Scheme becoming effective and/or with effect from the Appointed Date:

a) all assets and properties of the Transferor Company as are movable in nature shall stand transferred to and be vested in the Transferee-company;

b) all immovable properties of the Transferor Company shall stand transferred to and be vested in the Transferee-Company;

c) all permits, approval licenses and registrations etc. relating to the Transferor Company shall stand transferred to an vested in the Transferee-Company;

d) all incentives, tax deferrals and benefits, carry-forward of losses, tax credits, tax refunds, minimum alternate tax credit entitlement subsidies, concessions; grants, rights, claims, leases, tenancy rights, permissions, etc. that the Transferor Company is entitled, to, along with all the obligations, shall stand transferred to and be available to the Transferee-Company;

e) all contracts, agreements etc. of the Transferor Company shall stand transferred to and vested in the Transferee-Company;

f) all loans, debts, liabilities etc. of the Transferor Company shall stand transferred to and be deemed to be the loans, debts, liabilities etc. of the Transferee-Company;

g) all proceedings relating to the Transferor Company, whether by or against the Transferor Company, shall continue and any prosecution shall be enforced by or against the Transferee-Company in the same manner and to the same extent as it would or might have been continued, prosecuted or enforced by or against the Transferor Company.

iv) All the employees of Transferor Company as on the Effective Date shall become the permanent employees of the Transferee-Company on terms and conditions not less favorable than those on which they are engaged by the Transferor Company.

v) Since the Transferee-Company holds entire, issued, subscribed and paid up capital of the Transferor Company, and the Transferor Company is the wholly owned subsidiary of the Transferee-Company, the share capital held by the Transferee-Company in the Transferor Company (including the beneficial ownership of 1 (one) share held through a nominee shareholder) shall stand cancelled upon the Scheme becoming effective under its Clause 11. The cancellation and extinguishment of the equity share capital of the Transferor Company as per said Clause 11 amounts to capital reduction, and shall be effected as a part of this Scheme itself and not under a separate procedure in terms of Sections 100 to 104 of the or such other provision as may be applicable from time to time, and the order of this Tribunal sanctioning the Scheme shall be deemed to be an order under Section 102 of theor such other provision as may be applicable from time to time confirming such reduction.

15.it has also been highlighted that with coming into force of the Scheme neither there would be reorganization of the share capital nor the Scheme would affect the rights of the members or creditors of the Transferee-Company. The combined excess of assets over liabilities of the Transferor-Petitioner Company is Rs. 353,513,055 (Rupees three hundred and fifty three million five hundred and thirteen thousand and eighty five only). Moreover, the combined excess of assets over liabilities of the Transferee-Company is Rs. 3,301,355,057 (Rupees three billion three hundred and one million three hundred and fifty five thousand and fifty seven only). Thus the combined aggregate of assets over liabilities of both the Petitioner Company and the Transferee-Company would be Rs. 3,654,368,142 (Rupees three billion six hundred fifty four million eight hundred sixty eight thousand one hundred forty two only) which is more than sufficient to meet the aggregate of liabilities of the Transferor Company and Transferee-Company.

16.It is also stated that no petition has been filed against the Transferor and Transferee-Company under Sections 397/398 of the Companies Act, 1956 or any other provision of the Companies Act, 2013. It is also stated that there is no investigation pending against any of these companies under any Act. Rules or Regulations.

17.It is also stated that the Petitioner Company is wholly owned subsidiary of the Transferee Company, but Regulation (4) of the Competition Commission of India (Procedure in regard to the Transaction of Business Relating to Combinations) Regulations, 2011 states that certain categories of combinations mentioned in Schedule-I are not likely to cause an appreciable effect on competition in India and so notice under the relevant provision of the Competition Act, 2002 is not required.

18.The contents of the application are supported by the affidavits of Mr. Sudeep Dhariwal, Authorized Representative of the Transferee-Company and that of Mr. Nitesh Brijesh Ahuja, Authorized Representative of Petitioner Company. It is stated that the Transferor-Company is wholly owned subsidiary of the Transferee-Company.

19.When the matter was listed before the Honble High Court on 22.11.2016, notice of the petition was directed to be issued to the Regional Director, Ministry of Corporate Affairs, New Delhi and the Official Liquidator. The notice was also directed to be published in the Indian Express English and Jansatta Hindi both Delhi/NCR Editions and the official gazette of Government of Haryana. It was also directed that the notice to be uploaded on the website of Official Liquidator.

20.The reports of the Official Liquidator and that of Mr. Mahesh Kumar, Regional Director Incharge. Northern Region, Ministry of Corporate Affairs by way of affidavit have been filed in response to the notice served upon the concerned statutory authorities.

21.I have heard learned counsel for the petitioner, the Official Liquidator for himself and also representing the Regional Director and perused the record quite carefully. The petitioner has also attached the certificate Annexure P-11 from the Chartered Accountant verifying that the petitioner/Transferor-Company is wholly owned subsidiary of the Transferee-Company. Annexure P-12 is the copy of certificate from the Chartered Accountant affirming the positive net worth and aggregate of assets of both the companies to be more than sufficient to meet their combined aggregate liabilities.

22.Affidavit dated 25.01.2017 of the Authorized Representative of the petitioner-company was filed with regard to the publications in the News Papers and publication of the notice in the official gazette of Government of Haryana. The newspaper cuttings are at Annexures A, B and C, respectively.

23.When the matter was listed on 08.05.2017, it was directed to file affidavit as to whether any objections to the proposed Scheme have been received by the petitioner-company after the notice of petition was advertised and uploaded on the website. It was also directed to make submission as to whether notice was required to be served upon the Reserve Bank of India. Affidavit dated 18.05.2017 of the Authorized Representative of the petitioner-company was filed in which he has stated that the company has not received any objection from any person till date to the proposed Scheme. It was further stated that as per regulation framed under the Foreign Exchange and Management Act, 1999 (FEMA) in relation to External Commercial Borrowings, there is no requirement for the Transferor-Company or the Transferee-Company to intimate or seek a no objection certificate from the Reserve Bank of India prior to the sanction of the Scheme of merger. However, as per paragraph 2, 16(v) of the Master Directions approval - External Commercial Borrowings, Trade Credit, Borrowing and lending in Foreign Currency by Authorized Dealers and Persons other than Authorized Dealers issued on January 1, 2016 (and updated till Feb. 23, 2017) states that in the event an ECB is to be transferred from the existing borrower to another on account of such borrowers involvement in merger/demerger/amalgamation/acquisition, a request will have to be made to the concerned Authorized Dealer bank (AD Bank). After the sanction of the merger, the AD bank will allow such change upon the satisfaction that the Transferee-Company acquiring the ECB is an eligible borrower. In support of this statement copy of letter issued by the AD Bank setting out such requirement has been attached with the affidavit as Annexure A-2 Under these instructions the Reserve Bank of India has authorized AD Bank to update the borrower name on account of merger and thus specific approval of Reserve Bank of India would not be required but the companies involved have to provide the list of documents to change the Borrower name as stated in the letter dated 17.05.2017 Annexure A-2 of AD Bank. It is, however, undertaken in the affidavit that the Petitioner Company shall comply with the applicable RBI regulations for transfer of such loan and any incidental matter thereto pursuant to the sanction of the Scheme This undertaking is taken on record. The Petitioner Company shall remain bound by it.

24.In terms of proviso to sub-section (7) of Section 230 and proviso to sub-section (3) of Section 232 of the Companies Act, 2013 the petitioner-company has also filed certificate from its auditor Annexure A-1 with the affidavit dated 18.05.2017 to the effect that the accounting treatment as specified in Clause 9, 1 to 9, 3 of the Scheme is in compliance with the applicable accounting standards specified by the Central Government pursuant to Section 133 of theread with General Circular No. 15/2013 dated 13.09.2013 issued by the Ministry of Corporate Affairs.

25.It is stated in the affidavit of Regional Director, Ministry of Corporate Affairs that notice of the petition was sent to the Income Tax Department for specific comments and the petitioner-company served copy of the petition on the Income Tax Department under whose jurisdiction the company is assessed. In response to the letter dated 28.12.2016 sent to the Income Tax Department no specific comments/observations have been received from the Income Tax Authorities.

26.With regard to the Scheme for merger, it is reported that the petitioner-company may be directed to comply with the relevant provisions of the Companies Act, 2013 and further the petitioner-company may also be directed to comply with applicable provisions of FEMA/RBI. Otherwise the petitioner-company stated that no prosecution proceedings are pending against the company for violation of various laws such as Companies Act, 1956, Companies Act, 2013, FEMA, IPC, SEBI Act, RBI Act etc.

27.The Official Liquidator has submitted his report dated 26.04.2017. The Official Liquidator referred to the observations of Chartered Accountant appointed to scrutinize the books of accounts of the Transferor Company. The observations made by the Chartered Accountant have been given in detail in the response submitted by the Official Liquidator. Ultimately the Chartered Accountant observed that composite Scheme of amalgamation and arrangement will be in the interest of shareholders and other stake holders and the Scheme is also not prejudicial to the interests of creditors, banks, employees or to the public at large. It is, however, observed in the report of Chartered Accountant that other than some amount of income Tax and Service Tax the company has generally been regular in depositing undisputed statutory dues including PFP Sales Tax, Customs Duty, Value Added Tax, Cess and other material statutory dues applicable to it with appropriate authorities.

28.The Regional Director in his affidavit has ultimately stated that after examining the Scheme and reply of the petitioner-company the deponent is inclined to accept the report of the Registrar of Companies and have no objection to the proposed Scheme except for the observations made in the affidavit.

29.The Authorized Representative of the company has filed his affidavit dated 04.05.2017 in response to the observation/comments made by the Regional Director and the Official Liquidator. It is stated that the Petitioner company has secured a loan amounting to USD 3,000,000 (US Dollars three million only) in the year 2013 being in the nature of external commercial borrowing. The loan amount is subsisting. It is undertaken that on the Scheme of merger becoming effective the Transferee-Company would be having sufficient funds to honour this liability. With regard to the delay in payment of statutory dues it is stated that some of these have not been deposited on account of the dispute pending with regard to such amounts it rs reaffirmed that there would be sufficient funds to honour this liability post merger. It is further stated that the Transferee-Company shall comply with all the guidelines, requirements and directions issued by the Reserve Bank of India upon receiving an intimation about the approval of the Scheme under FEMA. It is directed that the aforesaid undertaking shall be binding and form part of this order.

30.Now coming to the prayer made in CA No. 619/2016 for granting exemption to the Transferee-Company for filing the Company Petition for approval of the Scheme before the jurisdictional Tribunal in Maharashtra. The notice of this application was issued to the Official Liquidator for 07.02.2017 by the Honble High Court when the matter was listed on 22.11.2010. Though the Official Liquidator filed the report in the main petition but reply to this application was not filed, however, on the previous date one more opportunity was granted to the Official Liquidator to file reply/objection, if any. Reply to this application has been filed by the Official Liquidator, copy of which has already been supplied to the learned counsel for the petitioner and the prayer has not been opposed by also referring to the settled case law on the subject. Learned counsel for the petitioner also submitted that neither this is a case of reorganization of the Transferee-Company nor it is going to have adverse effect on the members or creditors of the Transferee-Company. In fact the Transferor-Company is the wholly owned subsidiary of Transferee-Company and is a profit making company as per audited balance sheet ending 31.03.2016 and even so in the provisional balance sheet drawn up to 26.08.2016. Transferor-Company is not being issued any shares of Transferee-Company rather the share capital of the Transferor-Company would become nil and its shares would stand cancelled in such an event Profit and the total aggregate assets of both the companies post merger would rather increase manifold and, therefore, creditors of Transferee-Company would not be affected.

31.Learned counsel for the petitioner has also referred to a few authorities where such prayer of dispensing with the filing of the petition in the jurisdictional Tribunal of the Transferee-Company can be dispensed with. Suffice it would be place reliance upon [2013] 176 Comp Cas 217 (Guj) inRe: Reliance Jamnagar Infrastructure Limiteddecided on 08.10.2012 by the Honble Gujarat High Court. Similar contention was raised by the Regional Director, Ministry of Corporate Affairs that the Transferee-Company ought to have filed an application/petition in the High Court of Bombay which has jurisdiction over it. In that case upon consideration of the material on record, the following undisputed facts emerged which are similar to the present case:

i) That the petitioner is the wholly owned Subsidiary of Reliance industries Ltd., the Transferee Company.

ii) That the Scheme is for amalgamation of the petitioner Subsidiary Company with its Holding Company.

iii) That the Scheme does not envisage issuance of any shares of the Transferee-Company, therefore the capital structure of the Transferee-Company remains unaltered.

iv) That the entire shareholding of the Petitioner Subsidiary Company would stand cancelled.

v) That Scheme does not involve any compromise or arrangement with the Shareholders or Creditors of the Transferee-Company.

vi) The Scheme provides for the transfer of all assets and liabilities of the Petitioner Subsidiary Company to the Transferee Holding Company.

vii) That the net worth of the Transferee Company is positive; that it has an excess of assets over liabilities.

viii) That the net worth of the Petitioner Subsidiary Company is positive; that it has an excess of assets over liabilities.

32.It was observed in that case that upon amalgamation of the Petitioner Subsidiary Company, with the Holding Transferee Company, no reorganization of the share capital of the Transferee Company is involved. The Scheme if sanctioned, would not be detrimental to the interests of the members or creditors of the Transferee Company or to the public interest at large. Further, the Regional Director has not made any observations in his affidavit to this effect. In these circumstances it was observed that there is no requirement for the Transferee Company to initiate separate proceedings. In the instant case also net worth of the Petitioner Subsidiary Company is positive and it has excess of assets over the liabilities.

33.In view of the above the unopposed prayer made in CA No. 619 of 2016 for dispensing with the requirement of filing the application by the Transferee-Company before the Jurisdictional Bench is allowed.

34.In view of the above, the Scheme of amalgamation of Petitioner Company with Transferee-Company is sanctioned, and it is directed that while implementing the Scheme the RBI/FEMA guidelines/instructions shall be complied with.

THIS TRIBUNAL DO FURTHER ORDER

i) That all the property, rights and powers of the Transferor-Company as specified in the Schedule to be supplied by the Petitioner/Transferor Company and all other properties, rights and powers of the Transferor Company without further act or deed to the Transferee-Company and accordingly the same shall pursuant to Section 232 of the Companies Act, 2013 be transferred to and vested in the Transferee-Company for all the estate and interest of the Transferor Company therein but subject nevertheless to all charges now affecting the same; and

ii) That all the liabilities and duties of the Transferor-Company shall he transferred without further act or deed to the Transferee-Company in pursuance of Section 232 of theand the shall become the liabilities and duties of the Transferee-Company; and

iii) That all proceedings now pending by or against the Transferor Company be continued by or against the Transferee-Company; and

iv) That all the employees of the Transferor-Company shall be transferred to the Transferee-Company in terms of the Scheme; and

v) That the Transferor Company shall within thirty days of 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 Company shall be dissolved without being wound up and the Registrar of Companies shall place all the documents relating to the Transferor Company registered with him and transfer the aforesaid documents to the Registrar of Companies where the Transferee-Company has its registered office in order to consolidate the files relating to both the companies; and

vi) That the Petitioner Company shall deposit an amount of Rs. 1,00,000 (Rupees one lakh only) with the Official Liquidator within a period of five weeks from the date of receipt of this order; and

vii) That any person interested shall be at liberty to apply to the Tribunal in the above matter for any directions that may be necessary.

35.It is clarified that this order should not be construed as an order in any way granting exemption from payment of any stamp duty, taxes or any other charges, if any, and payment in accordance with law or in respect of any permission or compliance with any other requirement which may be specifically required under the law.

36.Formal order be issued on the petitioner on filing of the Schedule of Property i.e. (i) freehold property of the Transferor-Company; and (ii) leasehold property of the Transferor-Company as per Form No. CAA 7 of Companies (Compromises, Arrangements and Amalgamations) Rules, 2016.