Per: Balraj Joshi, Member (Technical)

1. The instant petition has been filed under Section 230(6) read with Section 232(3) of the Companies Act, 2013 (“Act”) for sanction of the Scheme of Amalgamation of Rockey Suppliers Private Limited, being the Petitioner No.1 abovenamed (“Transferor Company No. 1”or “Petitioner No. 1”), Goldman Fabrics Private Limited, being the Petitioner No. 2 abovenamed ("Transferor Company No. 2" or “Petitioner No. 2”), with Lactose Vinimay Pvt. Ltd., being the Petitioner No. 3 abovenamed (“Transferee Company” or “Petitioner No. 3”) whereby and whereunder the Transferor Companies are proposed to be amalgamated with the Transferee Company from the Appointed Date, viz 1st day of April, 2020 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 final hearing. Ld. Authorised Representative for the Petitioner submits as follows:-

(a)The Scheme was approved unanimously by the respective Board of Directors of the Petitioner Companies at their meetings held on 15th March, 2021 respectively.

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

i) Reduce overheads and administrative, managerial and other expenditure;

ii) Provide greater efficiency and more optimal utilization of resources;

iii) Reduce legal and regulatory compliances;

iv) Create enhanced value for all stakeholders of the respective companies;

v) Reorganize businesses to optimize for operational efficiency, rationalize for cost and streamline for growth, since all the Companies are situated in West Bengal, i.e., a single state providing enhanced resources and economies of scale.

(c)The Statutory Auditors of the Petitioner Companies have by their certificates dated 18th March, 2021 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 Shri Manish Gadia, Registered valuer having Registration No. IBBI/RV/06/2019/11646.

(f) The shares of the Petitioner Company No. 1,2 and 3 are not listed.

(g)By an order dated 10th August, 2021 pronounced on 14th September, 2021 in Company Application (CAA) No.105/ KB/ 2021, this Tribunal made the following directions with regard to meeting(s) of shareholders and creditors under Section 230(1) read with Section 232(1) of the Act:-

Meeting(s) dispensed: Meetings of the Equity Shareholders and Unsecured Creditors of the Applicant No. 1, Applicant No. 2 and Applicant No. 3 are dispensed-with under Section 230(1) read with Section 232(1) of the Act.

(h) Consequently, the Petitioner(s) presented the instant petition for sanction of the Scheme. By an order dated 08th December, 2021 the instant petition was admitted by this Tribunal and fixed for hearing on 28th January, 2022 upon issuance of notices to the Statutory/ Sectoral Authorities and advertisement of date of hearing. In compliance with the said order dated 08th December, 2021, the Petitioner(s) have duly served such notices on the Regional Director, Eastern Region (Ministry of Corporate Affairs), Kolkata; Registrar of Companies, West Bengal; Official Liquidator, West Bengal; Income Tax Officer having jurisdiction over applicants/petitioners Companies on 23rd December, 2021 through hand delivery and Reserve Bank of India on 24th December, 2021 through hand delivery. The Petitioner(s) have also published such advertisements once each in the “Financial Express” in English and “Aajkaal” in Bengali, in their respective issues dated 28th December, 2021. An affidavit of compliance in this regard has also been filed by them on 20th January, 2022.

3. All statutory formalities requisite for obtaining 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.

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

5. The Official Liquidator has filed his report dated 17th February, 2022 and concluded as under:-

At Para 8

That the Official Liquidator has not received any complaint against the proposed Scheme of Amalgamation from any person/party interested in the Scheme in any manner till the date of filing of this Report.

At Para 10

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 public interest as per the provisions of the Companies Act, 1956/the Companies Act, 2013 whichever is applicable.

6. The RD has filed his reply affidavit dated 25th February, 2022 (“RD affidavit”) which has been dealt with by the Petitioner(s) by their Joint Affidavit dated 12th May, 2022 (“Rejoinder”). The observations of the RD and responses of the Petitioner(s) are summarized as under: -

Paragraph No 2(a) of RD Affidavit

That it is submitted that on examination of the report of the Registrar of Companies, West Bengal it appears that no complaint and/or representation has been received against the proposed Scheme of Amalgamation. The petitioner companies are also up-dated in filing their statutory returns. Further, in the said report, the ROC, WB stated that there is pending charge for Rs.20,60,00,000/- against the Transferee Company M/s Lactose Vinimay Private Limited (Copy of the said report marked as Annexure-I is enclosed herewith for perusal and ready reference).

Paragraph No. 5 of Rejoinder

With reference to paragraph 2(a) of the said reply, this is substantially correct that no complaint and/or representation has been received against the proposed Scheme of Amalgamation, from the Registrar of Companies, West Bengal. Further it is submitted that all the petitioner companies have up-dated their filing status and all the statutory returns have been filed with the Registrar of Companies. Furthermore, the Transferee Company, M/s. Lactose Vinimay Private Limited, had created a Charge on 06th January, 2016 amounting to Rs.20,60,00,000/- in favor of Indian Bank. However, Indian Bank vide letter dated 10th May, 2022 certified that presently there are no outstanding liabilities of M/s. Lactose Vinimay Private Limited. Subsequently, M/s. Lactose Vinimay Private Limited on May, 2022 had filed e-form CHG4- intimating the Registrar of Companies, about the satisfaction of charge, Copy e-form CHG4 alongwith the Challan is annexed herewith and marked as Annexure A.

Paragraph No 2(b) of RD Affidavit

It is submitted that the Transferee Company, Lactose Vinimay Private Limited and Transferor Company, Rockey Suppliers Private Limited are carrying NBFC activities and registered with RBI as NBFC. But no 'NOC' from RBI has been provided yet.

Paragraph No. 6 of Rejoinder

With reference to paragraph 2(b) of the said reply, save what are matters of record, it is submitted that M/s. Rockey Suppliers Private Limited/Transferor Company no.1 was registered as a Non-Banking Finance Company having Registration no. B05.06402 with Reserve Bank of India under section 45-IA of The Reserve Bank of India Act, 1934 and was carrying on the business of granting loans and advances and also carrying on the activity of investment. On 12th November 2018, the RBI cancelled the license for carrying out the NBFC activities. Presently, the Company is no longer carrying out any NBFC activity. I further state that M/s. Lactose Vinimay Private Limited had vide letter dated 08th April, 2021 requested the Reserve Bank of India (hereinafter referred as “RBI”) to grant the No-Objection Certificate for the proposed Scheme of Amalgamation. Thereafter vide letter dated 25th January, 2022 and 23rd February, 2022 M/s. Lactose Vinimay Private Limited, have provided further documents/information, as requisitioned by RBI. Copy of the letter dated 08th April, 2021, 25th January, 2022 and 23rd February, 2022 are annexed herewith and marked as Annexure B Colly. However, we have not yet received the said NoC from RBI.

Paragraph No 2(c) of RD Affidavit

The Transferor Company, Rockey Supplier Private Limited held more than 20% shares of Honey Vanijya Private Limited as on 31.3.2021. But no consolidated financial statement has been filed for 2019-20 by the company contrary to the provisions of section 137(1) read with section 129(3) of the Companies Act 2013, rendering the financial statement filed as incomplete. The company. should first file the correct and complete sets of financial statements for the said years. Once merged the company shall become non-active on MCA portal and would have the plea that it is no more in a position to file the pending complete financial statements. Filing of such complete financial statements is statutorily mandated in terms of the provisions of section 137 of the Companies Act 2013. It would entail not only avoidance of statutory obligation of filing the Returns but also loss of fee revenue to Government.

Paragraph No. 7 of Rejoinder

With reference to paragraph 2(c) of the said reply, save what are matters of record, it is submitted that due to an inadvertent error the e-form AoC-4 CFS of M/s. Rockey Supplier private Limited, Transferor Company no.1 was not filed with the Registrar of Companies. However, presently we have rectified the error and had filed the consolidated financial statement for the financial year 2019-20 in compliance of the prescribed provision of the Companies Act, 2013. I state that M/s. Rockey Supplier Private Limited had complied with the provisions of the section 137 of the Companies Act, 2013. Copy of the challan along with the filed e-form AoC 4 CFS is attached herewith and marked as Annexure C.

Paragraph No 2(d) of RD Affidavit

The Transferor Company, Goldman Fabrics Private Limited, is a Non-Banking Financial Companies. Their financial statement as at 31.03.2021 exhibit that more than 50% of its total assets were financial assets and more than 50% of its income was financial income as follows:- [Rs. in Lakhs]

Therefore, the company is NBFC, but apparently functioning without Registration Certificate from the Reserve Bank of India under section 451A of the Reserve Bank of India Act, 1934, as it appears since the Auditor has surprisingly avoided stating the said facts in the Auditors' Report. The said material facts that the company are NBFC functioning without necessary registration with RBI has not been also disclosed in the scheme, contrary to the provisions of section 230(2)(a) of the Companies Act 2013.

Paragraph No. 8 of Rejoinder

With reference to paragraph 2(d) of the said reply, save what are matters of record, it is submitted that the M/s. Goldman Fabrics Private Limited, Transferor Company no.2 is a Core Investment Company and further classified as Non-Systemically Important CIC (NSI). As per the RBI Regulation, Non-Systemically Important CIC (NSI) is a non-deposit taking CIC which has an asset size of less than Rs. 100 Crore according to the last audited balance sheet. As per circular Notification No. DNBS (PD) 220/CGM(US)-2011 dated 5th January, 2011, the CICs that have an asset size of below Rs 100 crore has been exempted from taking NBFC registration and therefore not bound by the regulations framed by the Reserve Bank of India to the extent applicable. The afore-mentioned notification clearly exempt M/s. Goldman Fabrics Private Limited, Transferor Company no. 2 from the taking the registration from Reserve Bank of India under Section 45 IA of Reserve Bank of India Act, 1934. Copy of the circular Notification No. DNBS (PD) 220/CGM(US)-2011 dated 5th January, 2011 is annexed herewith and marked as Annexure D. Further, it is submitted that we have not raised funds from public in the form of privately placed NCDs or any form of deposit. M/s. Goldman Fabrics Private Limited, has only made investment and has advanced surplus funds as loans, in group companies, the fact is duly mentioned in Part 1 Paragraph 2 of the Scheme of Amalgamation. Furthermore, M/s. Goldman Fabrics Private Limited is getting merged into M/s. Lactose Vinmay Private Limited, which is registered as a NBFC under Section 45 IA of the Reserve Bank of India Act, 1934. The Transferee Company is a compliant NBFC and undertakes to comply with all necessary requirement relating to Non-Banking Financial Company on approval of the Scheme of Amalgamation.

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 No. 9 of Rejoinder

With reference to paragraph 2(e) of the said reply, save what are matters of record, it is submitted that, the Transferee Company undertakes that it shall comply with the provisions of Sec 232(3)(i) of the Companies Act, 2013 in regard to adjustment of fees upon clubbing of Authorized Share Capital(s) of the Transferor Company(ies) with the Authorized Share Capital of the Transferee Company in post-amalgamation and shall file a detailed statement thereof with the Registrar of Companies at the time of filing of INC – 28.

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 No. 10 of Rejoinder

With reference to paragraph 2(f) of the said reply, save what matters of record, it is submitted that the Transferee company undertakes to pay the applicable stamp duty on the transfer of the immovable properties, if any, from the Transferor Companies to Transferee Company as applicable.

Paragraph No 2(g) of RD Affidavit

The Hon'ble Tribunal may kindly direct the Petitioners to file an 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 is made.

Paragraph No. 11 of Rejoinder

With reference to paragraph 2(g) of the said reply, save what are matters of record, we state and confirm that there is no discrepancy or change to the said Scheme of Amalgamation enclosed to Company Application and Company Petition and the Scheme annexed to the Company Application and Company Petition are one and same. Copy of the Scheme attached with Company Application and Company Petition are attached herewith and marked as Annexure E1 and E2 respectively.

Paragraph No 2(h) of RD Affidavit

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 the Amalgamation or arrangement. Further, the approval of the scheme by the 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 shall be binding on the Petitioner Company (s) concerned.

Paragraph No. 12 of Rejoinder

With reference to paragraph 2(h) of the said reply, save what are matters of record, we state that the Hon’ble Tribunal, Kolkata Bench vide Order dated 14th September, 2021 had directed the Petitioner Companies to serve Notices to the concerned authorities. The Petitioner Companies have complied with the directions contained in the said order passed by the Hon’ble National Company Law Tribunal, Kolkata Bench, have effected service upon all Regulatory Authorities and have filed affidavit of compliance. Further vide Order dated 08th December, 2021 the Petitioner Companies was directed to serve Notices to the concerned authorities, also at the time of second motion stage. The Petitioner Companies have complied with the directions contained in the said order passed by the Hon’ble National Company Law Tribunal, Kolkata Bench and have filed affidavit of compliance. The Petitioner Companies agree that decision of any authorities post sanctioning shall be binding on Transferee Company.

Paragraph No 2(i) of RD Affidavit

It is submitted that the Income Tax Department by letter dated 22/10/2021 with a request to forward their comments/observations/ objection, if any However, the said authority has not forwarded their report to this Directorate till date.

Paragraph No. 13 of Rejoinder

With reference to paragraph 2(i) of the said reply, save what are matters of record, we state that we have not yet received any comments/ observations/ objection from the Income Tax Department.

7. Heard submissions made by the Ld Counsel appearing for the Petitioner, RD. 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 with the Appointed Date as 1st April, 2020 and shall be binding 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 vested in 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 liabilities and duties of “Transferor Companies” be transferred from the without further act or deed to “Transferee Company” and, accordingly, the same shall pursuant to Section 232 of the Companies Act, 2013 and read with Companies (Compromises, Arrangements and Amalgamation) Rules, 2016 be transferred to and become the debts, liabilities and duties of 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) Lactose Vinimay Pvt Ltd (“Transferee Company”) do without further application issue and allot to the shareholders of the Rockey Suppliers Pvt Ltd and Goldman Fabrics Private Limited, (“Transferor Companies”), the shares in the Lactose Vinimay Pvt Ltd (“Transferee Company”) to which they are entitled in terms of the Scheme;

(g) The Schedule of Assets and liabilities of the “Transferor Companies” to be filed within three weeks from the date of receiving a copy of this order;

(h) “Transferor Companies” and “Transferee Company” shall each within 30 days after the date of receipt of this Order, cause certified copy thereof to be delivered, the Rockey Suppliers Pvt Ltd and Goldman Fabrics Private Limited, (“Transferor Companies”) shall be dissolved without winding up 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 Lactose Vinimay Pvt Ltd (“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. 187/KB/2021 is disposed of accordingly.

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