Per: Rajasekhar V.K. Member (Judicial):

1. The instant petition has been filed under Section 232(3) and other applicable provisions of the Companies Act, 2013 (“Act”) for sanction of the Scheme of Amalgamation of Krishna Financial Consultants Private Limited, being the Petitioner No. 2 abovenamed ("Transferor Company No. 1" or “Petitioner No. 2”), Metalite Fuel Industries Limited, being the Petitioner No. 3 abovenamed ("Transferor Company No. 2" or “Petitioner No. 3”), Mohit Vyapaar Private Limited, being the Petitioner No. 4 abovenamed ("Transferor Company No. 3" or “Petitioner No. 4”) and Ramrajya Lefin Private Limited, being the Petitioner No. 5 abovenamed ("Transferor Company No. 4" or “Petitioner No. 5”) with Ravi Business Services Private Limited, being the Petitioner No. 1 abovenamed ("Transferee Company" or “Petitioner No. 1”) whereby and whereunder the Transferor Companies are proposed to be amalgamated with the Transferee Company from the Appointed Date, viz 1 st Day of April, 2019 in the manner and on the terms and conditions stated in the said Scheme of Amalgamation (“Scheme”).

2. The Petition has now come up for a final hearing. Counsel for the Petitioners submits as follows:-

(a) The Scheme was approved unanimously by the respective Board of Directors of the Petitioner Companies at their meetings held on 15/07/2020 respectively.

(b) The circumstances which justify and/or have necessitated the Scheme and the benefits of the same are, inter alia, as follows:-

(i) For the purposes of better, efficient and economical management, control and running of the business of the undertakings concerned and also for administrative convenience and to obtain advantage of economy of large scale and to broad base the present business, the present Scheme is proposed to amalgamate the Transferor Companies with the Transferee Company.

(ii) Simplification of corporate structure by reducing the number of legal entities and reorganizing the legal entities in the group structure;

(iii) Significant reduction in the multiplicity of legal and regulatory compliances required at present to be carried out;

(iv) Elimination of duplication in administrative costs and multiple recordkeeping, thus resulting in cost savings;

(v) Concentrated effort and focus by the senior management to grow the business by eliminating duplicative communication and burdensome coordination efforts across multiple entities

(vi) Simply the Shareholding of Transferee Company.

(c) The Statutory Auditors of respective Petitioner Companies have by their certificates dated 30/09/2020 confirmed that the accounting treatment in the Scheme is in conformity with the accounting standards prescribed under Section 133 of the Companies Act, 2013.

(d) No proceedings are pending under Sections 210 to 227 of the Companies Act, 2013 against the Petitioner(s).

(e) The exchange ratio of shares in consideration of the Amalgamation has been fixed on a fair and reasonable basis and on the basis of the Report thereon of Mr. Shashi Agarwal, Registered Valuer.

(f) The shares of the all Petitioner Companies are not listed in any Stock exchange.

(g) By an order dated 17th December,2021 in Company Application (CAA) No. 35/KB/2021, this Tribunal made the following directions with regard to meeting(s) of shareholders and creditors under Section 230(1) :-

Meeting (s) dispensed: Meetings of the Equity Shareholders, and Unsecured Creditor of the Applicant No. 1, 2, 3, 4 and 5 are dispensed-with under Section 230(1) read with Section 232(1) of the Act. Meeting of Secured Creditor of Applicant No. 5 is not required as they have been in full.

(h) Consequently, the Petitioner(s) presented the instant petition for sanction of the Scheme. By an order dated 21/03/2022 the instant petition was admitted by this Tribunal and fixed for hearing on 05/05/2022 upon issuance of notices to the Statutory / Sectoral Authorities and advertisement of date of hearing. In compliance with the said order dated 22/10/2021, the Petitioner(s) have duly served such notices on the Regional Director, MCA on 07/04/2022, Registrar of Companies on 07/04/2022, Official Liquidator on 07/04/2022 Income Tax officer on 07/04/2022,and Reserve Bank of India on 07/04/2022. The Petitioner(s) have also published such advertisements once each in the ‘Financial Express’ on 22/04/2022 and in ‘Aajkaal’ on 16/11/2021. An affidavit of compliance duly affirmed on 22/04/2022 in this regard has also been filed by them.

(i) All statutory formalities requisite for obtaining the sanction of the Scheme have been duly complied with by the Petitioners. The Scheme has been made bona fide and is in the interest of all concerned.

3. Pursuant to the said advertisements and notices the Regional Director, Ministry of Corporate Affairs, Kolkata (“RD”), Official Liquidator, High Court, Calcutta have filed their representations before this Tribunal.

4. The Official Liquidator has filed his report dated 18th May, 2022 and concluded as under:-

“That the Official Liquidator on the basis of information submitted by the Petitioner Companies is of the view that the affairs of the aforesaid Transferor Companies do not appear to have been conducted in a manner prejudicial to the interest of its members or to the public interest as per the provisions of the Companies Act, 1956/the Companies Act, 2013 whichever is applicable.”

5. The RD has filed his reply affidavit dated 4 th May, 2022 (“RD affidavit”) which has been dealt with by the Petitioner(s). The observations of the RD and responses of the Petitioner(s) are summarized as under:-

(a) Paragraph No. 2 (a ) of RD affidavit :

It is submitted that as per available records, it appears. that no complaint and /or representation regarding the proposed Scheme of Amalgamation has been received against the Petitioner Companies, Further, as per available records all the petitioner companies are updated in filing their Statutory Returns as on 31/03/2021.

Paragraph 5(a) of Rejoinder:

With reference to paragraph 2(a) of the said reply, since the statements made in the said paragraphs are general statements hence no comments is required to the said statements.

(b) Paragraph No. 2 (b) of RD affidavit :

Appointed Date is 1st April 2019 which is much older and since all the Petitioner Companies have already filed subsequent Financial Statements upto the financial year ended 31/03/2021, this Appointed Date apparently lacks relevance to the Scheme, as it appears. Hon'ble Tribunal may peruse the same and issue order as deemed fit and proper, keeping in view the present circumstances. Further, in terms of the Circular no.09/2019 dated 21.08.2019 of the Ministry of Corporate Affairs, "where the 'appointed date' is chosen as a specific calendar date, it may precede the date of filing of the application for scheme of merger/amalgamation in NCLT. However, if the 'appointed date' is significantly ante-dated beyond a year from the date of filing, the justification for the same would have to be specifically brought out in the scheme and it should not be against public interest. It is not ascertainable from the documents provided by the Applicant whether the application for the scheme was filed before Hon'ble Tribunal within a year from 1st April 2019. If the application for the scheme was fled with Hon’ble Tribunal after more than one year from the appointed date, Hon’ble Tribunal may kindly direct the Applicant to bring out the justification for the appointed date being more than one year before date of filing of the application for the scheme, in the scheme according to the Circular.

Paragraph 5(b ) of Rejoinder :

With reference to para 2(b), it is stated that Appointed Date is 1st April,2019 as when the scheme was considered by the Board of Directors of the Petitioner Companies on 15/07/2020 when the accounts for year ended 31/03/2020 of the petitioners companies was not audited. However, it is stated that the Scheme of Amalgamation with appointed date as 01/04/2019 is not against the public interest. Further, if required the appointed date may be changed to 01/04/2021 or any such date as may be deem fit and proper by Hon’ble National Company Law Tribunal, Kolkata Bench.

(c) Paragraph No. 2 (C ) of RD affidavit :

It is submitted that the Transferor Company, Metalite Fuel Industries Ltd filed incomplete Auditors' Report with its financial statement for 2020-21 rendering the filing seriously flawed. The company should first rectify the document in MCA portal

Paragraph 5(c) of Rejoinder :

(c ) With reference to para 2(c), it is submitted that e-form GNL-2 has been filed with the Registrar of Companies, West Bengal on 11/05/2022 vide SRN- F00407031 for cancellation of financial statement along with e-form AOC-4 of Metalite Fuel Industries Limited for the year ended 31/03/2021 so that revised revised Financial Statement of said Metalite Fuel Industries Limited for the year ended 31/03/2021 can be filed. However till date even though GNL-2 has been approved but the revised financial statement cannot be filed as still the AOC-4 has not been cancelled. Copy of e-form GNL-2 alongwith challan are annexed hereto and marked with Letter ‘A’.

However, the Petitioner submitted that revised Financial Statement of said Metalite Fuel Industries Limited for the year ended 31/03/2021 has been filed on 25/05/2022.

(d) Paragraph No. 2 (d ) of RD affidavit :

It is submitted that the Transferee Company Ravi Business Services Private Limited and the Transferor Company, Metalite Fuel Industries Limited are carrying out NBFC activities and registered with RBI as NBFC. But no NOC" from RB1 has been provided yet in the matter. Further, the Transferor Company, Mohit Vyapaar Private Limited is operating as an NBFC without registration under section 451A of the Reserve Bank of India Act 1934, as also has been reported in the Auditors' Report of the Company.

Paragraph 5(d) of Rejoinder :

(d) With reference to para 2(d), it is stated that the petitioners companies have sent notices to Reserve Bank of India twice. Further, the Petitioner Companies undertakes that if any petitioner companies has violated any provision of the Reserve Bank of India Act then the Directors of the petitioner companies are liable for breaching the applicable provisions of the Reserve Bank of India Act irrespective of the sanction of the Scheme.

(e) Paragraph No. 2 (e) of RD affidavit :

Petitioner company should undertake to comply with the provisions of section 232(3)(i) of the Companies Act, 2013 through appropriate affirmation.

Paragraph 5(e) of Rejoinder :

With reference to para 2 (e), it is stated that the petitioners' companies undertake to comply with the provisions of section 232(3)(i) of the Companies Act 2013. Further, Part-B of Clause 9 of the Scheme relating to authorised capital is in accordance with section 232(3)(i) of the Companies Act 2013.

(f) Paragraph No. 2 (f ) of RD affidavit :

That the Transferee Company should be directed to pay applicable stamp duty on the transfer of the immovable properties from the Transferor Companies to it.

Paragraph 5(f) of Rejoinder :

With reference to para 2 (f), it is stated that the petitioners companies undertakes to pay applicable stamp duty on the transfer of the immovable properties from the Transferor Companies to it. However Petitioner Companies undertakes that stamp duty will be paid immediately after sanction of scheme and the Scheme becomes effective.

(g) Paragraph No. 2 (g) of RD affidavit :

The Hon'ble Tribunal may kindly direct the Petitioners to file en affidavit to the extent that the Scheme enclosed to the Company Application and Company Petition are one and same and there is no discrepancy or no change in made

Paragraph 5(g) of Rejoinder :

With reference to para 2(g), it is stated that the Scheme enclosed to the Company Application and Company Petition are one and same and there is no discrepancy and no change.

(h) Paragraph No. 2 (h) of RD affidavit :

It is submitted that as per instructions of the Ministry of Corporate Affairs, New Delhi, a copy of the scheme was forwarded to the Income Tax Department on 21/01/2022 with a request to forward their comments/observations/ objections and the same is still awaited.

Paragraph 5(h) of Rejoinder :

With reference to para 2(h), it is stated that the petitioner companies have also served the notice two times to the respective income tax assessing officer and have received no communication. However, the Petitioner Companies undertakes that even after the sanction of scheme, the Transferee Company will be liable for all liabilities of Transferor Companies.

Paragraph 6 of Rejoinder :

It is further stated and submitted that the petitioner companies undertake that if there is any deficiencies found, or violation committed relating any enactment, statutory rules or regulations, the sanction granted by the Hon'ble Tribunal to the scheme will not come in the way of action being taken in accordance with law, against the concerned persons, directors and official of the petitioners and Transferee Company.

6. After hearing submissions made by the Ld Counsel appearing for the Petitioners, it is ordered that in case of any default including any Provisions of Income Tax Act in this respect of the Transferor Companies the Income Tax department , the ROC, West Bengal and all other Statutory Department shall be at liberty to initiate appropriate proceedings against the Transferee Company, which after the sanction of the scheme by this Tribunal is in any case responsible for the liabilities/non-compliance of the Transferor Companies also.

7. Further, heard submissions made by the Ld Counsel appearing for the Petitioner, Mr. Harihar Sahoo, Joint Director for and on behalf of RD, who appeared and heard. Upon perusing the records and documents in the instant proceedings and considering the submissions, we allow the petition and make the following orders:-

(a) the Scheme of Amalgamation mentioned in paragraph 1 of the petition, being Annexure "A" hereto is hereby sanctioned by this Tribunal to be binding with effect from 1 st Day of April, 2019 (“Appointed Date”) on Transferor Companies and Transferee Company, their respective shareholders and creditors and all concerned;

(b) all the property, rights and powers of the Transferor Companies, including those described in the Schedule of Assets herein, be transferred from the said Appointed Date, without further act or deed, to the Transferee Company and, accordingly, the same shall pursuant to Section 232(4) of the Companies Act, 2013, be transferred to and vest in the Transferee Company for all the estate and interest of the Transferor Companies therein but subject nevertheless to all charges now affecting the same, as provided in the Scheme;

(c) all the debts, liabilities, duties and obligations of the Transferor Companies be transferred from the said Appointed Date, without further act or deed to the Transferee Company and, accordingly, the same shall pursuant to Section 232(4) of the Companies Act, 2013, be transferred to and become the debts, liabilities, duties and obligations of the Transferee Company;

(d) the employees of the Transferor Companies shall be engaged by the Transferee Company, as provided in the Scheme;

(e) all proceedings and/or suits and/or appeals now pending by or against the Transferor Companies be continued by or against the Transferee Company, as provided in the Scheme;

(f) In case it is found that if the Transferee and Transferor companies has violated any provision of the Reserve Bank of India Act, then the Directors of the Transferee Company and Transferor Companies shall be liable for breaching the applicable provisions of the Reserve Bank of India Act irrespective of the sanction of the Scheme.

(g) The Transferee Company do without further application issue and allot to the shareholders of the Transferor Companies , the shares in the Transferee Company to which they are entitled in terms of the Scheme;

(h) leave is granted to the Petitioner(s) to file the Schedule of Assets and liabilities of the Transferor Companies in the form as prescribed in the Schedule to Form No. CAA-7 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 within three weeks from the date of receiving a copy of this order;

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

(j) The Transferor Companies and the Transferee Company shall each within thirty days of the date of the receipt of this order, cause a certified copy thereof to be delivered to the Registrar of Companies for registration and on such certified copies being so delivered, the Transferor Companies shall be dissolved with effect from the date or last of the dates of filing of the certified copies of the order, as aforesaid (Effective Date) and the Registrar of Companies shall place all documents relating to the Transferor Companies and registered with him on the file kept by him in relation to the Transferee Company and the files relating to the said companies shall be consolidated accordingly.

8. The Petitioner(s) shall supply legible print out of the scheme and schedule of assets and liabilities in acceptable form to the Registry and the Registry will append such printout, upon verification to the certified copy of the order.

9. Company Petition (CAA) No. 28/ KB /2022 is disposed of accordingly.

10. Urgent certified copy of this order, if applied or, be supplied to the parties, subject to compliance with all requisite formalities.