Per: Reeta Kohli, Member (Judicial)
1. Heard the Learned Counsel for the Petitioner Companies. No objector has come before this Tribunal to oppose the Scheme and nor has any party controverted any averments made in the Petitions to the said Scheme.
2. The sanction of the Tribunal is sought under Sections 230 to 232 of the Companies Act, 2013 and other relevant provisions of the Companies Act, 2013 and the rules framed there under for the Scheme of Amalgamation & Arrangement of J.P. INFRA (MUMBAI) PRIVATE LIMITED (JPIMPL), the Demerged Company 1, FOUR D ESTATES PRIVATE LIMITED (FDEPL), the Demerged Company 2/Resulting Company 1, FOURD BUILDSPACE PRIVATE LIMITED (FDBPL), the Transferor Company/Resulting Company 2, with JP INFRA REALTY PRIVATE LIMITED (JPIRPL), the Transferee Company.
3. The Petitioner Companies have approved the said Scheme of Amalgamation by passing the Board Resolutions dated 9 th September, 2021 which are annexed to the respective Company Scheme Petitions.
4. The Learned Counsel appearing on behalf of the Petitioners states that the Petitions have been filed in consonance with the Order passed in the Company Scheme Application No. 273 of 2021 of the Hon’ble Tribunal.
5. The Learned Counsel appearing on behalf of the Petitioners further states that the Petitioner Companies have complied with all requirements as per directions of the National Company Law Tribunal, Mumbai Bench and they have filed necessary affidavits of compliance in the National Company Law Tribunal, Mumbai Bench.
6. The Learned Counsel for the Petitioner Companies states that the First Petitioner Company presently is engaged in the business of construction of Residential projects and broadly has two main business undertakings: (i) Brownfield Project Undertaking which is engaged in the development of Slum Rehabilitation Projects, Redevelopment Projects, etc; (ii) Greenfield Project Undertaking which comprises of the business of acquisition of plots of land and construction of housing projects thereon. (hereinafter referred to as “Demerged Undertaking”) which shall be transferred to the Applicant Company No. 2 by way of Demerger and that the Second Petitioner Company presently in a real estate holding company which holds investments in various real estate entities and its business can be categorized as under: (a) Brownfield Investment Undertaking which constitutes investment in entities engaged in the development of Slum Rehabilitation Projects, Redevelopment Projects, etc; (b) Greenfield Project Undertaking which primarily comprises of the business of acquisition of plots of land and construction of housing projects thereon (hereinafter referred to as "Demerged Undertaking 2"). This business undertaking shall be transferred to FDBPL by way of Demerger and the third Petitioner Company submits that it is a real estate holding company and that the Fourth Petitioner Company is engaged in the business of construction of Greenfield Residential projects including affordable housing projects.
7. The Board of Directors of Transferor, Demerged Companies & Transferee are of the view that the Scheme is in the interest of the shareholders, creditors and employees on account of the following reasons:
a. FDEPL, through its wholly owned subsidiary i.e., JPIMPL is significantly into Brownfield project space whereas JPIRPL is predominantly engaged in the construction of the projects in Greenfield Sector.
b. Demerger of the greenfield project undertaking from JPIMPL into FDEPL (in Part II) would enable carving out a sole greenfield project undertaking from JPIMPL and enable JPIMPL to focus on its core expertise of handling Brownfield projects.
c. Further, subsequent demerger (in Part III) of the Greenfield Project Undertaking from FDEPL into FDBPL would achieve the desired exit of both FDEPL & JPIMPL from the Greenfield business and focus on their core expertise of handling Brownfield Projects.
d. Since the entities belong to the same promoter group, the proposed demerger shall ensure alignment of the business verticals JPIMPL & FDEPL continuing in the Brownfield Projects and JPIRPL in Greenfield Projects.
e. Demergers as proposed in Part II and Part III will achieve a resultant structure such that resultant entities i.e., JPIMPL and JPIRPL could attract right set of investors based varying industry dynamics, risk and reward involved in Brownfield Projects versus Greenfield Projects.
f. Further, proposed amalgamation of FDBPL with JPIRPL (in Part IV) shall eliminate layering/holding company for Greenfield Projects and enable the promoters of the Transferor to exercise direct control over the Transferee
8. The Regional Director has filed his Report dated 23rd May, 2022 inter-alia making the following observations in Paragraphs IV (a) to (j) which are reproduced hereunder:
| Para | Observation by the Regional Director | Undertaking of the Petitioner Company/ Rejoinder |
| IV(a) | In addition to compliance of AS- 14 (IND AS-I03), 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. |
So far as the observation in paragraph IV (a) of the Report of the Regional Director is concerned, the Learned Counsel for the Petitioner Companies submits that in addition to Compliance of AS-14, 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 etc. |
| IV(b) | b) The Petitioners under provisions of section 230(5) of the Companies Act, 2013 have to serve notices to concerned authorities which are likely to be affected by Compromise or arrangement. Further, the approval of the scheme by this Hon'ble Tribunal may not deter such authorities to deal with any of the issues arising after giving effect to the scheme. The decision of such Authorities is binding on the Petitioner Company(s). |
So far as the observation in paragraph IV (b) of the Report of the Regional Director is concerned, the Learned Counsel for the Petitioner Companies submits that the Petitioner undertakes that to serve notices to concerned authorities which are likely to be affected by Compromise or arrangement and that the scheme by this Hon’ble Tribunal may not deter any authorities to deal with any of the issues arising after giving effect to the scheme and that the decision of authorities is binding on the Petitioner Company (s). |
| IV (c) | The Hon'ble NCLT may kindly direct to the Petitioners to file an undertaking to the extent that the Scheme enclosed to the Company Application and the scheme enclosed to the Company Petition are one & same and there is no discrepancy or deviation. | So far as the observation in paragraph IV (c) of the Report of the Regional Director is concerned, the Learned Counsel for the Petitioner Companies submits that the Petitioner undertakes that Scheme enclosed to the Company Application and the scheme enclosed to the Company Petition are one & same there is no discrepancy or deviation. |
| IV (d) | As per Definition of the Scheme,
"Appointed Date" shall mean the opening of the business hours as 1st day of November, 2020 or if the Board of Directors of the Transferor, Demerged Companies, Resulting Companies and the Transferee require any other date or the Central Government or other competent authority modifies the appointed date to such other date, then the same shall be the appointed date; "Effective Date”' shall mean the day on which the order passed by NCLT sanctioning the proposed Scheme after obtaining the relevant approvals, is filed with the Registrar of Companies, Mumbai. Any references in this Scheme to the date of "coming into effect of this Scheme" or "effectiveness of this Scheme" or |
So far as the observation in paragraph IV (d) of the Report of the Regional Director is concerned, the Learned Counsel for the Petitioner Companies submits that the Appointed Date is 1st day of November 2020 and that it is inadvertently stated in the Regional Director Report that appointed date is 1st day of April 2020 and therefore it is not antedated more than one year. Further, the Petitioner Companies undertake to comply with requirements and clarified vide circular no. F. No. 7/12/2019/CL-1 dated 21.08.2019 issued by the Ministry of Corporate Affairs |
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| Scheme taking effect" or "upon the scheme becoming effective" shall mean the Effective Date; The appointed date is 01.04.2020 which is antedated more than one year which needs to be changed. Further, the Petitioners may be asked to comply with the requirements and clarified vide circular no. F. No. 7/12/2019/CL-I dated 21.08.2019 issued by the Ministry of Corporate Affairs. |
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| IV (e) | Clause 16 of the Scheme.
Petitioner Companies have to undertake that the surplus / deficit shall be adjusted to Capital Reserve Account. Further Petitioner Companies have to undertake that reserves | So far as the observation in paragraph IV (e) of the Report of the Regional Director is concerned, the Learned Counsel for the Petitioner Companies submits that the Petitioner undertakes that that the surplus / deficit shall be adjusted to Capital Reserve Account and reserves shall not be available for |
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| shall not be available for distribution of dividend. | distribution of dividend. |
| IV (f) | Petitioner Companies to | So far as the observation in paragraph |
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| undertake to obtain NOC from | IV (f) of the Report of the Regional |
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| Income tax department, if so | Director is concerned, the Learned |
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| required | Counsel for the Petitioner Companies |
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| submits that Petitioner Company No. |
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| 1, 2 & 4 will not get dissolved and |
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| that Petitioner Company No. 3 will be |
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| dissolved however the Petitioner |
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| Company No.4 will takeover the |
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| assets and liabilities and that the |
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| Income Tax Department will reserve |
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| its rights as per the available remedy. |
| IV (g) | The Hon'ble NCLT may kindly |
So far as the observation in paragraph IV |
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| direct the Petitioner Companies | (g) of the Report of the Regional Director |
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| to obtain NOC from RERA as | is concerned, the Learned Counsel for the |
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| the Petitioner Company are | Petitioner Companies submits that the |
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| engaged in the business of Real | NOC from RERA is not appliable. |
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| estate | However, after the direction of the |
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| NCLT the notice was served to |
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| MAHARERA and affidavit was filled |
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| with the National Company Law |
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| Tribunal. |
| IV(h) |
The Hon'ble NCLT may kindly direct the Transferee Company to file Form SH-7 along with alteration of MOA and AOA with ROC for increasing of Authorised Capital and also direct to pay difference amount of filling fees and stamp duty on its increasing share capital |
So far as the observation in paragraph IV (h) of the Report of the Regional Director is concerned, the Learned Counsel for the Petitioner Companies submits that the Petitioner undertakes to file Form SH-7 along with alteration of MOA and AOA with ROC for increasing of Authorised Capital and also to pay difference amount of filling fees and stamp duty on its increasing share capital. |
| IV(i) | STATUS OF ROC REPORT:-
ROC, Mumbai Report dated 14.03.2022 has inter alia mentioned that there are no prosecution, no technical scrutiny, no inquiry, no inspection and no complaints pending against Petitioner Companies. Further mentioned that :-.
1. Authorized and paid up share capital of the Resulting Company |
So far as the observation in paragraph IV (i) (1) of the Report of the Regional Director is concerned, the Learned Counsel for the Petitioner Companies |
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| -1 does not tally with. the Master data.
| submits that the authorized and paid up share capital of Resulting Company-1 does not tally with the Master Data due to buy back of shares (28,049 Non- Voting Equity Shares of Rs. 100/- each) undertaken by the Resulting Company-1 in June 2021. The updated share capital will be reflected in the Master Data once the ROC annual filings (Form MGT-7) are done by the Company.
So far as the observation in paragraph IV (i) (2) of the Report of the Regional Director is concerned, the Learned Counsel for the Petitioner Companies submits that the Petitioner undertakes to issue notice to Maharashtra Real Estate Regulation Authority. However, after the direction from National Company Law Tribunal, Mumbai Bench the notice was served to MAHARERA and the affidavit was filed.
So far as the observation in paragraph IV (i) (3) of the Report of the Regional Director is concerned, the Learned Counsel for the Petitioner Companies |
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4. As per the provision of 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 set off against any fees payable by the Transferee Company on its Authorized Capital subsequent to the amalgamation. Therefore, remaining fee, if any after setting - off the fees already paid by the Transferor Company on its Authorized Capital, has to be paid by the | submits that the Petitioner Companies undertakes to protect the interests of the Creditors.
So far as the observation in paragraph IV (i) (4) of the Report of the Regional Director is concerned, the Learned Counsel for the Petitioner Companies submits that the Petitioner undertakes to comply with the provision of 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 set off against any fees payable by the Transferee Company on its Authorized Capital subsequent to the amalgamation. Therefore, remaining fee, if any after setting - off the fees already paid by the Transferor Company on its Authorized Capital, has to be paid by the Transferee Company on the increased authorized capital subsequent to the amalgamation |
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| Transferee Company on the increased authorized capital subsequent to the amalgamation. Hon’ble Tribunal may consider the observations pointed out by ROC, Mumbai in their report and direct Petitioner Company to submit its reply on each of the observations |
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| IV(j) | The Hon'ble Tribunal may kindly direct the Demerged Company - 1 to serve notices to investors who has invested in Greenfield Projects. |
So far as the observation in paragraph IV (j) of the Report of the Regional Director is concerned, the Learned Counsel for the Petitioner Companies submits that the J.P. Infra (Mumbai) Private Limited (Demerged Company- 1) submits that the investor/ Secured Creditors approval was taken and the affidavit to that has been filed. . |
9. The observations made by the Regional Director have been explained by the Petitioner Companies in Para 8 above. The Bench has directed the Petitioner Company to serve notice to MAHARERA. The said was served by the Petitioner Company was filed with National Company Law Tribunal, Mumbai Bench.
10. The Official Liquidator has filed his report on 5 th May, 2022 in the Company Scheme Petition No. 60 of 2022, inter alia, stating therein that the affairs of the Transferor Company have been conducted in a proper manner not prejudicial to the interest of the Shareholders of the Transferor Company and that the Transferor Companies may be ordered to be dissolved by this Tribunal.
11. Mr. Tushar Mohan Wagh, Deputy Director representative of the RD (WR) MCA, present at the time of hearing has submitted that the explanations and clarifications given by the Petitioner Companies are found to be satisfactory and stated that they have no objection for approving the Scheme by this Tribunal.
12. From the material on record, the Scheme appears to be fair and reasonable and is not violative of any provisions of law and is not contrary to public policy.
13. Since all the requisite statutory compliances have been fulfilled, Company Scheme Petition No. 60 of 2022 is made absolute in terms of clauses (a) to (c) of the said Company Scheme Petition.
14. The Third Petitioner Company be dissolved without winding up.
15. Petitioners are directed to file a copy of this Order along with a copy of the Scheme of Amalgamation with the concerned Registrar of Companies, electronically along with E-Form INC-28, in addition to physical copy within 30 days from the date of receipt of the Order from the Registry.
16. The Petitioner Companies to lodge a copy of this Order and the Scheme duly authenticated by the Deputy Registrar or Assistant Registrar, National Company Law Tribunal, Mumbai Bench, with the concerned Superintendent of Stamps, for the purpose of adjudication of stamp duty payable within 60 days from the date of receipt of the Order, if any.
17. All authorities concerned to act on a copy of this Order along with Scheme duly authenticated by the Deputy Director or Assistant Registrar, National Company Law Tribunal, Mumbai.
18. The Appointed Date is 1 st November, 2020.
19. Ordered Accordingly. C.P.(CAA)/60/MB-V/2022 is allowed and disposed of.
