Per: Ajay Kumar Vatsavayi, Member {Judicial)

1. This is a joint second motion application filed by RMZ Infotech Private Limited (hereinafter referred to as the “Petitioner Company No. 1/Transferee Company No. 1 /Transferor Company No.2), Thanatos India Private Limited (hereiriafter referred to as the “Petitioner Company No.2/Transferor Company No. 1) and RMZ Ecoworld Infrastructure Private Limited (hereinafter referred to as the “Petitioner Company No.3/Transferee Company No.2/Resulting Company) under Sections 230- 232 of the Companies Act, 2013 and other applicable provisions of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 for the sanction of Composite Scheme of Amalgamatiori and Arrangement amongst RMZ Infotech Private Limited and Thanatos India Private Limlted and RMZ Ecoworld Infrastructure Private Limited and their respective Shareholders and Creditors. This petition is maintainable in terms of Rule 3(2J of the Rules.

2. The Petitioner Companies Petitioner Nos. 1 to 3 flled First Motion Application bearirig C.A (CAA) No.33/ BB/202 1 before this Tribunal for seeking to dispense with the meetings of the Equity Shareholders of Petitioners Nos. 1 to 3 Companies, to dispense with the convening and holding of the meeting of 9.5% Redeemable, Non-Cumulative, Non- Convertible Preference Shareholder of the Applicant No.3 and to dispense with the meeting of the Secured Creditors and Unsecured Creditors of the Applicant Companies No. 1 to 3. Based on such application, neeessary directions were issued on 13.08.202 l in which the convenirig and meeting of the Equity Shareholders of the Applicant/Petltioner Compariies and 9.5% Redeemable Non-Cumulative, Non-Convertible Prefereriee Shareholder of Applicant No.3 and Secured and Unsecured Creditors of the Applicant Nos. 1 to 3 were dispensed with.

3. When the .Petition was listed on 25.11.202 l, the following directions were issued:-

4. The Petition be listed for hearing on TO. OI.NOTE. Notice of hearing be ndoertised in the Jeanne neu spaper as in the rst motion petition i.e., "the Hindu" in Lnplish Edition rind "Sanjerani" in Kannada Edition not less than 10 day:s before the afore:said date fixed for henrfnp.

5. Notice be al:so Berued upon the ObjecIoT(s} or their representntires a:s contemplated under lb-Section (4) of Section !23O of the Act who may have made representation and who have desired to be heard in their representation alonp with n copy of the petition nod me annexure filed th‘eremith at lea:st 15 days before the date fixed for hearing. It be specified in the notices that the objections, if nag, to the Scheme contemplated by the authoritie:s to whom notice hns been given on or before the date of hearing fixed herein mny be filed within thirty days from the dnte of the receipt of the notice, jailing which it will be considered that there 1s no objection to the approval of the Scheme on the part of the authorities by this Tribunal and subject to other condition:s beinp :sati:sfied as may be applicable under the Companies Act, 2013 and relevant rules framed t!ieretinder.

6. In addition to the above public notice, each of the Petitioner Companies shall serve the notice of the petition or the follou›ing Aulhoritie:s nnmely, (a) fieqionnl Director (South Ea:st Region} Ministry of Corporate Affair:s (b) Registrar of Companie:s, BenSaftiru (c) Income Tax Authority through Designated Nodel Officer — Principal Chief Commis:sioner of Income box Karrintakn rind Goa by mentioning tire PAN of the Companies (d) the Competition CommieBion of India Limited, in addition to the above the Petitioner Company No. Z is also required to serve notice to (a} Official Liquidator (b) Re:serve brink of India and in addition to the above the Petitioner Company No.:3 is also required to :serue notices to (a) Cochin Special Economic done (b) The Dec:unities rind Fxchaupe Board of India (c) Bombay Stock Exchange Limited (BASE), alonp with the copy of this Petition by speed post immediately rind to such other Sectoral fiepulator (s] who may govern the morkinp of the respective companie:s involved in the
scheme.

7. T'he Petitioner .Companies shall also serve notices to its current creditors aB on the date of passing of this order hnrinp outstanding debt CfJTlO£tnting to not fewB than 5% of total outstanding debt of the company as per the list of creditors.

8. the Petitioner Companies shaft at least T days be/ore the date of hearing of the petition file an af davit of service repnrdinp paper publication aB well as service of rtoticeB or the authoritie:s specified above including the sectoral reg£tfntor ae well aB IO ob)ectors, if nay. Objections, if any, to the Scheme contemplated by the authorities to whom notice hns been piren on or before the date of fearing fixed herein may be filed, failing which it wifi be considered that there iB no objection to the approval of the ’Gciieme’ on the part of the authorities ley tWs tribunal and subject to other condition beinp watt:sfied as may be applicable under the Companies Act, 2O1 3 and relevant rules framed thereunder. Registry shrill also report before the date feed aB to whether nay objection has been received to the proposed ’Scheme’.

4. The affidavits of compliance by the authorized signatories of the Petitioner Company Nos. l to 3 were filed separately vide Diary No. 172, Diary No. 173 and Diary No. 174 dated 11.01.2022 along with original copies of newspaper publications in the Hindu’ (English), and ‘Sanjevani’ (Kannada), all three dated 06.01.2022 and the same is attached at Annexure-E & F to Compliance Affidavits. Copies of proof of service of notice to the statutory authorities i.e. (a) The Registrar of Companies, Karnataka, (b) The Regional Director, South East Region, (e) The Principal Commissioner of Income Tax, (d) The Competition Commission of India, (e) Income Tax Authority Central 2 (4) are also part and parcel of the compliance affidavits. It is deposed that no objection has been received by the Petitioner Companies or it is from any person or authority/department to the Scheme of Amalgamation. The Registry has also reported that no objection has been received as per order dated 25. 11.2022.

5. The main objects, date of incorporation, authorised, issued and paid-up share capital, rationale of the Scheme and interest of employees have been discussed ln detail in order disposing of the First Motion Application on 13. 08.2021.

6. It is further submitted that the Certificate of Statutory Auditors of the Petitioner Companies No. 1 & 3 has been placed as Annexure 12 of the petition stating that the accounting treatment specifled in paragraph 25 8s 26 of the scheme, attached herewith and stamped by us for identification only, is in compliance with Accounting Standards notified under Section 133 of the Act, r/w Rule 3 of the companies (India Accounting Standard) Rules, 2015 (relevant accounting standards).

7. The audited financial statements of the Petitioner Company Nos. 1 & 3 as on 3 1.03. 202 1 and unaudited financial statements of Petitioner Companies No. 1 & 2 as on 31.3.2021 are attached as Annexure 3, 4, 6 & 8 respectively of the Petition.

8. As per the Scheme, the Demerger Appointed Date shall means 06.12. 2020 and merger Appointed Date shall mean 05.12.2020 or such other date as may be proposed and approved by this Tribunal. The effective date, as stated in the Scheme is as below:-

“Effec:tive Date:S menus Effective Date 1 and Effective Dale '2!.

’Effective Date 1 means the date or which the la:st of the conditions specified under Clause Z 9 of this Scheme are fulfilled (or the requirement of which hos been u›aived, aB may be permitted under the applicable law)

’A ectire Date 2 means one (1) cnfendnr day from Effective Date 1”.

9. It is deposed that there are no Statutory/ Sectoral Regulators applicable to the Petitioner Companies and the notice of the same is to be given only to namely (a) The Registrar of Companies, Karnataka, (b) The Regional Director, Hyderabad, (c) The Official Liquidator, Designated Nodal Officer,

(d) The Principal Commissioner of Income Tax, (e) The Competition Commission of India, (fj BSE Limited Stock Exchange (g) Cochin Special Economic Zone, Bengaluru (h) The Securities and Exchange Board of India. The affidavits in this regard are attached as Annexure 18 of the petition.

10. We have heard the learned Counsel for the Petitioner Companies, Registrar of Companies, Bengaluru & Regional Director, South East Region and Income Tax Department and have perused the records.

11. The Regional Director and Registrar of Companies have filed a common report vide Diary No.215 dated 17.01.2022. The observations are as under:-

(1) The Resulting Company is a 100% subsidiary of the Transferee Company.

(2) The Appointed Date for the merger is 05.12.2020 and the appointed date for the Demerger is 06. 12.2020. The Demerger will be effective only after the merger of Transferor Company No. l with Transferee Company No. 1 and Transferor Company will be dissolved i.e. Thanatos India Private Limited.

(3) The Transferor Company, Transferee Company and Resulting Company need to explain about the status of furnishing of NOC or otherwise from the left out secured and unsecured creditors if any, to the Hon’b1e NCLT.

(4) As per the Independent Auditor’s report as at 3 1.03.2020 of the Transferee Company and Resulting Company, there were huge statutory dues payable to the statutory authorities. In this regard, the Transferee Company and Resulting Company need to furnish an affidavit to the Hon’ble NCLT to the effect that it shall pay the dues as and when demand is made.

(5) As per the Independent Auditor’s report as at 03. 03. 2020 of the Transferee Company, the Company has granted loans to 19 companies which are repayable on demand and 2 loans where principal amount is repayable after 5 years. With respect to payment of loans given to 16 parties i.e. interest free loans, there is no Stlpulation with respect to payment or interest in case of 3 loans. In this regard the Transferee Company needs to explain and furnish an undertaking with regard to compliance of Section 186 of the Companies Act, 2013 before the Hon’ble NCLT.

(6) They shall furnish an undertaking with regard to the compliance of the provision of Section 188 of the Companies Act 20 13.

(7) As per Clause 27, the Equity Shares and Preference Shares of Petitioner Company No.3 received pursuant to Transfer of Demerged undertaking shall stands cancelled and reduced without any further act or deeds.

(8) Upon the scheme is approved, if the authorised share capital of Transferor Company is clubbed with Authorised share capital of the Transferee Company, the Transferee Company shall comply with provisions of the Section 232 (3) {i) of the companies Act, 20 l8 and pay the difference fee, after setting off the fee already paid by the Transferor Company on its respective capital.

12. In response to the corrimon report of ROC & RD, the learned Counsel for the Petitioner Companies has filed a reply affidavit vide Diary No.246 dated 17.0 l .2022 and submitted as follows: -

(i) In response to the observation made at Para 6, it is stated that 92. 84% in value of the secured creditors and 99.73% in value of unsecured creditors of the Petitioner Company No. 1 have approved the proposed scheme by way of consent affidavits. The copy of the list of secured and Unsecured Creditors of Petitioner Company No. 1 is attached as Annexure 1 and 2 of the reply affidavit. The Petitioner Company no.2 did riot have any Secured Creditors as on 30th April 2021. 99.92% in value of Unsecured Creditors of Petitioner Company No.2 have approved the proposed scheme by way of consent affidavits. Further, 92.92% in value of secured Creditors and 93.84% in value of Unsecured Creditors of Petitioner Company No.3 have approved the proposed scheme by way of consent affidavits. Further, the Petitioner Companies undertake to discharge the liabilities of all the creditors from whom the consent affidavits were not obtained, as and when such liabilities become due.

(ii) In response to the observation made in Para 7, it is stated that the Petitioner Company Nos. 1 & 3 undertake to discharge the statutory liabilities to the statutory authorities, as and when such liabilities become due, subject to the right of the Petitioner Company No. 1 8s Petitioner Company No.3 to defend or dispute or appeal against the liabilities wherever required.

(ili) In response to the observation made in Para 8, it is stated that the Petitioner Company No. 1 falls under the ambit of a company providing infrastructural facilities as explained under Section 186 read together with Schedule VI of the Companies Act, 2018. Petitioner Company No. 1 is in the business of developing, leasing and maintenance of infrastructural projects such as industrial parks/commercial office space /IT/ITES parks at various locations in India including Bangalore, Gurgaon and Chennai. The Petitioner No. 1 currently owns the properties at Bangalore and at Chennai. Further as per Section 186(11) of the Companies Act, 2018, companies engaged in the business of providing infrastructure facilities are exempted from complying with the provisions of Section 186 of the Companies Act, 20 13 with the exception of sub-section (1) thereof. In view of the aforesaid, the Petitioner Company No. 1 confirms that it is in due compliance of Section 186 of the Companies Act, 2013.

(iv) In response to the observation made in Para 9, it is stated that Petitioner Companies have entered into all related party transaction in the ordinary course of business at the prevailing market prices and has duly complied with the provisions of Section 188 of the Companies Act, 20 l3 and rules made thereunder.

(v) In response to the observation made in Para 11, it is submitted that the Petitioner Company No. 1 undertakes to comply with the provisions of Section 232 (3) (i) of the Companies Act, 2013 regarding set-off of the fees paid by the Petitioner Company No.2 against any fees payable by the Petitioner Company No. 1 on its authorised capital subsequent to the scheme becoming effective and undertake to pay difference fee, if any.

13. The Official Liquidator in its report vide Diary No. 185 dated 12.01.2022 has mainly reiterated the contents of the proposed scheme and has not made any adverse observations or raised any objections to present scheme.

14. The Learned Counsel for the Income Tax Department submitted that the department has filed report vide Diary No. 286 dated 19.0 1.2022 in respect of M/ s. RMZ Ecoworld Infrastructure Private Limited (Petitioner No.3) stating that there is no outstanding demand in the case of RMZ Ecoworld Infrastructure Private Limited and penalty proceedings are in abeyance for AY 2015- 16, 2016- 17 & 2017- 18 till disposal of appeal by the Commissioner of Income Tax (Appeals). Further, they have filed report vide Diary No. 287 dated 19.01.2022 in respect of Thantos India Private Limited {Petitioner Company No.2) stating that there is no outstanding demand of the Assessee which is assessed in this circle. Further, the IT Department also given report vide Diary No. 285 dated 19.01.2022 in respect of RMZ Infotech Private Limited (Petitioner Company No. 1) and stated that there is an outstanding demand as per ITBA in case of M/ s. RMZ Infotech Private Limited. However, subsequently submitted that the demand is not a recoverable demand from the assessee, the demand exits due to technical glitches in the system and the assessee has filed a letter to rectify the same and it is rectified accordingly.

15. Further, the Competition Commission of India (CCI) vide letter dated 04. 01.2022 has interalia stated that the matter referred to therein has been approved by the Commission on 29th September 2020 under the provisions of the Competition Act, 2002.

16. There has no representation from Securities arid Exchange Board of India (SEBI) and Bombay Stock Exchange (BSE) in respect of the notices sent to them. The speed post receipts along with tracking report showing successful service of notices to SEBI are a part of Diary No. 172 dated 11 .0 1.2022.

17. The Learned Counsel for the Petitioner Companies has referred to the Clause 20 of the Scheme which provides that on and from the Effective date, all staff, workmen and employees, if any of Demerged Undertaking of the Merged Company, in service on the Effective Date 2, shall be deemed to have become staff, workmen and employees of Resulting Company with effect from the Effective Date 2 or Demerger Appointed Date whichever is later, without any break or interruption in their service and on the basis of continuity of service, and the terms and conditions of their employment with Resulting Company (i.e., cost-to-company basis, in monetary terms) shall not be less favourable than those applicable to them with reference to their employment with the merged company on the effective Date 1 or Demerged Appointed Date whichever ls later.

18. In view of the above discussion, we conclude that the objections / observations to the Scheme received from RoC 8s RD have been adequately replied by the Petitioner Companies and hence, there is no impediment in approval of the Scheme.

19. The Scheme (Annexure- 1) is approved and we hereby declare the same to be binding on all the shareholders and creditors of the Petitioner Companies and on all concerned. While approving the Scheme, 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 / compliances with any other requirement which may be speciflCally required under any law. With the sanction of the Scheme, the Transferor Company No. 1 shall stand dissolved without undergoing the process of winding up.

AND THIS TRIBUNAL DOES FURTHER OHDER:

(A) WITH RESPECT TO THE TRANSFEROR COMPANY NO. 1 AND

TRANsFERsE courANY NO.1

i) That all the property, rights and powers of the Transferor Company No. 1 be transferred, without further act or deed, to the Transferee Company No. 1 and accordingly, the same shall pursuant to Sections 230-232 of the Companies Act, 2013, be transferred to and vested in the Transferee Company No. 1 for all the estate and interest of the Transferor Company No. 1 but subject nevertheless to all charges now affecting the same; and

ii) That all the liabilities and duties of the Transferor Company No. l be transferred, without further act or deed, to the Transferee Company No. 1 and accordingly the same shall pursu‘ant to Sections 230-232 of the Companies Act, 2013 be transferred to and become the liabilities and duties of the Transferee Company No. 1; and

iii) That all the proceedings now pending by or against the Transferor Company No. 1 be continued by or against the Transferee Company No. 1; and

iv) That all the employees of the Transferor Company No. 1 shall be transferred to the Transferee Company No. l in terms of the ‘Scheme’; and

v) That the Transferee Company No. 1 shall, without further application, allot to the existing members of the Transferor Company No. 1 shares of the Transferee Company No. 1 to which they are entitled under the Scheme; and

vi) The Authorised Share Capital of the Transferee Company No. 1 shall stand increased and that of Transferor Company No. 1 shall stand cancelled and extinguished as provided in the Scheme and the fee, if any, paid by the Transferor Company No. 1 on its authorized capital shall be set off against any fees payable by the Transferee Company No. 1 on its authorised capital subsequent to the sanction of the ‘Scheme’; and

vii) The Transferee Company No. 1 shall deposit an amount of Rs. 75, 000/ - (Rupees Seventy Five Thousand only) with the Pay & Accounts Office in respect of the Regional Director, South East Region, Ministry of Corporate Affairs, Chennai and Rs.25,000/ - (Rupees Twenty Five Thousand only) in favour of “Prime Minister National Relief Fund”, within a period of four weeks from the date of receipt of certified copy of this order; arid

(B} WITH RESPECT TO THE TRANSFEREE COMPANY NO. 1 AND THE RESULTING COMPANY

i) That all the property, rights and powers of the Demerged Undertaking of the Transferee Company No. 1 be transferred, without further act or deed, to the Resulting Company and accordingly, the same shall pursuant to Sections 230-232 of the Companies Act, 2013, be transferred to and vested in the Resulting Company for all the estate and interest of the Demerged Undertaking of the Transferee Company No. 1 but subject nevertheless to all charges now affecting the same; and

ii) That all the liabilities and duties of the Demerged Undertaking of the Transferee Company No. 1 be transferred, without further act or deed, to the Resulting Company and accordingly the same shall pursuant to Sections 230-232 of the Companies Act, 2013 be transferred to and become the liabilities and duties of the Resulting Company; and

iii) That all the proceedings now pending by or against in relation to the Demerged Undertaking of the Transferee Company No. 1 be continued by or against the Resulting Company; and

iv) That all the employees of the Demerged Undertaking of the Transferee Company No. 1 shall be transferred to the Resulting Company in terms of the ’Scheme’; and I That the Resulting Company shall, without further application, allot to the existing members of the Demerged undertaking of the Transferee Company No. 1 shares of the Resulting Company to which they are entitled under the Scheme and;

vi) The Resulting Company shall deposit an amount of Rs. 75,000/ - (Rupees Seventy Five Thousand onlyJ with the Pay & Account Office in respect of the Regional Director, South East Region, Ministry of Corporate Affairs, Chennai and Rs.25,000/- (Rupees Twenty Flve Thousand only) in favour of “Prime Minister National Relief Fund”, within a period of four weeks from the date of receipt of certified copy of this order; arid
JC) WITH RESPECT TO THE PETITIONER COMPANIES

i) That the Petitioner Companies shall, within 30 days after 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 No. 1 shall be dissolved without undergoing the process of winding up. The concerned Registrar of Companies shall place all the documents relating to the Transferor Company No. 1 and registered with it on the file relating to the Transferee Company No. 1 and the files relating to the Transferor No. 1 and Transferee Company No. 1 shall be consolidated accordingly, as the case may be;

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

iii) That approval/ sanctioning of the Scheme shall not be construed as an exemption from any of the provisions under the Income Tax Act, 1961 or the Companies Act, 20 13, and that the authorities under both the Acts, are at liberty to take appropriate action, in accordance with law, if so advised.

20. As per the above directions, Form No. CAA-7 of Companies (Compromise, Arrangements and Amalgamation) Rules, 2016, formal orders be issued on the Petitioner Companies on filing of the Schedule of Property i.e. (i) freehold property of the Transferor Company No. 1 and freehold property of Demerged undertaking of Transferee Company No. 1 (iiJ leasehold property of the Transferor Company No. l and leasehold property of Demerged undertaking of the Transferee Company No. 1 by way of affidavits of the Transferor Company No. 1 & Demerged undertaking of the Transferee Company No. 1 respectively.

21. Accordingly, the C.P {CAA} No.41/BB /2O21 is disposed of.

Copy of this order be communicated to the Counsel for the Petitioner Companies.