1. This is joint first motion application filed by Applicant Companies namely; SSK Automotive Private Limited (Transferor Company/Applicant Company No. 1) and HGI Automotives Private Limited (Transferee Company/Applicant Company No. 2) under Sections 230-232 of Companies Act, 2013 ( the) and other applicable provisions of the read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 (the Rules) in relation to the Scheme of Amalgamation between the companies. The said Scheme is attached as Annexure -1 of the Application.
2. The Applicant Company has prayed for dispensing with the requirement of the convening of the meetings of the Shareholders, Secured Creditors of the Applicant companies, Unsecured Creditors of Transferee Company/ Applicant Company No. 2.
3. The Applicant Company No. 1/ Transferor Company is presently engaged in the business of manufacturers, buyers, sellers, importers, exporters, agents, fitters, repairers, installers, assemblers of the dealers in all type of equipments, components, tools, spares and engineering items requires in all types of automobiles, motor cars, buses, lorries taxi-cab, trucks, taxies, vans jeeps, motors launchers, motor-cycles, vehicles etc.
4. The Applicant Company No. 2/ Transferee Company is presently engaged in the business of manufacturing, assemble, buy, sell, distribute, import, export, alter, remodel, hire, exchange, repair, service and otherwise deal in all or any type of automobile and engineering parts, spare parts, accessories, components of cycles, rickshaw, motorcycle etc. and other conveyances of all descriptions whether propelled or assisted by means of petrol, spirits steam, gas electricity etc. and apparatus, equipments, components, accessories, capable of being used for or in connection with automobile and Agriculture Machinery, Materials Handling Equipments, Control and Measuring Equipments etc.
5. It is submitted that the registered office of Transferor Company/ Applicant Company no. 1 and Transferee Company/ Applicant Company No. 2 is situated in Faridabad in the State of Haryana. Therefore, the territorial jurisdiction of only the applicant company falls with this Bench.
6. The rationale of the Scheme is given below:-
a) Amalgamating the Transferor Company with Transferee Company will give the consolidated Company better opportunities, better finances and adequate resource mobilization to sustain growth.
b) Strengthening and consolidating the position of Transferee Company and enabling it pursuant to the Scheme of amalgamation/ merger contemplated herein to participate more vigorously and profitably in an increasingly competitive and liberalized market.
c) Enabling better leverage of facilities and infrastructure and human resources and for better administration.
d) Augmenting and strengthening core business of Transferee Company resulting in enhancement of shareholders’ value of both Transferee Company and Transferor Company.
e) The synergy of the amalgamation will improve operational efficiencies, integrated management functioning and will enhance the share value for the benefit of shareholders of the existing entities.
f) The amalgamation of the Transferor Company with Transferee Company will result in reduction of overheads, administrative, managerial and other expenditure, and bring about operational rationalization, tax and organizational efficiency and optimal utilization of various resources.
g) The amalgamation will result in significant reduction in the multiplicity of legal and regulatory compliances required at present to be carried out each by Transferee Company and Transferor Company and also to avoid duplication of administrative functions and eliminate multiple record-keeping.
h) The amalgamation will insure to the benefit of the respective Companies, their shareholders, creditors, employees and all concerned and will enable these companies to achieve and fulfill their objectives more efficiently and economically.
i) All the Companies have in principle formulated the present Scheme as it would augur to the benefit of all the stakeholders.
6.1 The present scheme of amalgamation involves the amalgamation of Transferor Company with the Transferee Company.
7. It is stated that the Board of Directors of the Applicant Companies in its meetings held on 28.01.2022 and 07.02.2022 have considered and unanimously approved the Scheme of Amalgamation subject to sanctioning of the same by this Tribunal. The board Resolution of the Applicant Companies is attached as Annexure -3 & 10 respectively of the application.
8. The appointed date of the Scheme is 01.04.2021 as mentioned in Part 1 Clause 1.2 of Scheme of Amalgamation which is attached as Annexure -1 of the application.
9. It is stated that the Applicant Companies have filed the audited Balance Sheet as on 31.03.2021 which are attached as Annexure- 6 & 13 respectively of the application and Supplementary balance sheet as on 31.01.2022 is attached as Annexure- 7 & 14 respectively of the Application.
10. It is submitted that in pursuance of provisions of Companies Act, 2013, the Applicant Companies have filed certificate dated 14.05.2022 issued by Vimal Chand Jain & Co. Chartered Accountants certifying that the Scheme is in compliance with the Accounting Standards under Section 133 of theand the same is attached as Annexure -19 of the application.
11. The valuation report has been submitted by Mr. Gyaneshwar Sahai, Registered Valuer having IBBI Registration No: IBBI/RV/03/2018/10226 which is attached as Annexure-16 of the application. As per the valuation report, dated 03.02.2022 the following Share Exchange Ratio has been proposed:-
12. It is deposed by way of affidavit that no investigation proceedings have been instituted or are pending in relation to the Applicant Companies (Annexure 17 & 18 respectively of the application). It is further deposed that Applicant companies are not governed by anybody or sectoral or Regulatory Authority except as required in their regular course of business, therefore, no special approval and permission is required to be obtained or service of present Scheme of amalgamation is required to be made to any Sectoral Authority or Regulatory Authority (Annexure 20 & 21 respectively of the application).
13. It is stated that the Scheme also takes care of the interests of the staff/workers and employees of the Companies by virtue of Part II Clause –10 of the Scheme [Annexure -1 of the application].
14. The applicant companies have furnished the following documents:-
i. Proposed Scheme of Amalgamation (Annexure -1 of the application)
ii. Copy of Memorandum and Articles of Association of the applicant companies (Annexure -2 & 9 respectively of the application).
iii. List of Shareholders of the Applicant Companies as on 10.02.2022 along with no objection certificate duly certified by Sh. Vimal Chand Jain & Co., Chartered Accountants (Annexure - 4 & 11 respectively of the application)
iv. List of Secured and Unsecured Creditors of Applicant Company No. 1 as on 10.02.2022 along with no objection certificate duly certified by S.S.K Automotive Private Limited, Authorized Signatory (Annexure -8 of the application).
v. List of Secured and Unsecured Creditors of Applicant Company No. 2 as on 10.02.2022 along with no objection certificate duly certified by H.G.I Automotives Private Limited, Authorized Signatory (Annexure -15 of the application).
vi. Certificate of Chartered Accountants to the effect that Accounting treatment proposed in the Scheme is in conformity with Section 133 of Companies Act, 2013 (Annexure -19 of the application).
vii. Valuation Report (Annexure -16 of the application).
viii. Audited Balance Sheet as on 31.03.2021 of the Applicant Companies (Annexure -6 & 13 respectively of the application).
ix. Supplementary Financial Statements as on 31.01.2022 of the Applicant Companies (Annexure -7 & 14 respectively of the application).
x. Affidavit regarding no proceeding for inspection, inquiry or investigation pending against Applicant Companies (Annexure-17 & 18 respectively of the application)
xi. Affidavit regarding Applicant companies are not governed by any Sectoral Regulator of Regulatory Authority (Annexure- 20 & 21 respectively of the application)
15. The Applicant Companies have furnished the details of the Equity Shareholders, Secured Creditor and Unsecured Creditors which are as follows:
16. Accordingly, the directions of this Bench in the present case are as under:-
I. In relation to the Transferor Company/Applicant Company No. 1:
a. The meetings of the Equity Shareholders are dispensed with keeping in view the shareholding pattern, financial structure of the company and the fact that the consent of all Equity Shareholders have been received by way of affidavits.
b. The meetings of the secured Creditors of the Applicant Company No. 1 are dispensed with as consent of all secured Creditors have been received by way of affidavits.
c. Since, there are Nil Unsecured Creditors in Applicant Company No. 1/Transferor Company, therefore, there is no scope for any meeting.
II. In relation to the Transferee Company/Applicant Company No. 2:
a. The meetings of the Equity Shareholders are dispensed with keeping in view the shareholding pattern, financial structure of the company and the fact that the consent of all Equity Shareholders have been received by way of affidavits.
b. The meetings of the secured Creditors of the Applicant Company No. 2 are dispensed with as consent of secured Creditors holding 98.49% in value have been received by way of affidavits.
c. The meetings of the Unsecured Creditors of the Applicant Company No. 2 are dispensed with as consent of all Unsecured Creditors have been received by way of affidavits.
17. In view of the above, the First Motion Application stands allowed by giving liberty to the Applicant Company to file Second Motion Petition with a direction that the Applicant Company shall make specific prayer for sending notices to the (a) Central Government through Regional Director, Northern Region, Ministry of Corporate Affairs, New Delhi, (b) concerned Registrar of Companies (c) Official Liquidator and (d) Income Tax Authorities by disclosing the PAN number of the Applicant Company in the title of the Second Motion Petition.
