T N S Hotels And Resorts Pvt Ltd Vs Mirza International Ltd (NCLT Allahabad)
The National Company Law Tribunal (NCLT), Allahabad Bench, considered a joint Second Motion company petition filed by T N S Hotels And Resorts Pvt Ltd, the Transferor Company, and Mirza International Ltd, the Transferee Company, seeking sanction of a proposed Scheme of Amalgamation under Sections 230–232 of the Companies Act, 2013, read with Rule 16 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016. The Tribunal issued procedural directions for notices to statutory authorities, individual creditor communications, newspaper publication, affidavits of service and consideration of objections. The order did not finally sanction the proposed amalgamation.
First Motion Proceedings: The petitioner companies had earlier moved CA (CAA) No.21/ALD/2023 seeking dispensation of meetings of their equity shareholders, secured creditors and unsecured creditors. Alternatively, they sought directions for convening separate meetings of the equity shareholders and creditors of the Transferee Company through video conferencing with remote e-voting under the Tribunal’s supervision. The application was moved under Sections 230–232. By its First Motion order dated 26.10.2023, the Tribunal issued directions governing the subsequent proceedings. The companies’ objects, incorporation dates, authorised and paid-up share capital and rationale for the proposed Scheme had been addressed in that earlier order.
Directions Regarding Statutory Authorities: The First Motion order directed the applicant companies to make a specific prayer in their Second Motion petition for notices to the Central Government through the Regional Director, Northern Region, Ministry of Corporate Affairs, New Delhi; the Registrar of Companies, Uttar Pradesh, Kanpur; the Official Liquidator, Uttar Pradesh, Prayagraj; and the Income Tax Department. The companies were required to disclose their PAN numbers in the title of the Second Motion petition. The Transferee Company was also directed to serve individual notices of the proposed Scheme upon all secured and unsecured creditors through speed post, registered post, courier, personal delivery or email. Creditors were to be invited to file objections or comments within 30 days of receiving notice.
Compliance Submissions: Counsel representing the petitioner companies informed the Tribunal that the specific prayer concerning notices to the prescribed authorities had already been made. Counsel further stated that individual notices were being issued in accordance with the directions dated 26.10.2023 and that an affidavit of compliance would be filed within ten days thereafter. The Tribunal recorded these submissions and proceeded to prescribe the service and publication requirements applicable to the Second Motion petition.
Newspaper Advertisement and Affidavits: In accordance with the notice procedure contemplated under Rule 16 governing the hearing of amalgamation petitions, the Tribunal directed publication of the hearing notice in Business Standard in English and Hindi, in editions having wide circulation in Lucknow and Delhi NCR. Publication was required not less than ten days before the next date of hearing. The petitioner companies were directed to file an affidavit of service at least seven days before the hearing, supported by newspaper clippings and proof of service upon the specified authorities. They were also required to file an affidavit recording objections received from the public following newspaper publication.
Objections and Consequences of Non-Response: The statutory authorities receiving notice were permitted to file objections to the Scheme within 30 days of receipt. If no objections were filed within that period, the Tribunal indicated that the authorities would be considered to have no objection to approval of the Scheme. However, the Tribunal expressly made further consideration subject to satisfaction of other applicable conditions under the Companies Act, 2013 and the relevant rules. The Registry was separately directed to report whether objections had been received before the next hearing.
FULL TEXT OF THE NCLT JUDGMENT/ORDER
1. This is a joint Second Motion company petition filed by the Petitioner Companies namely, T N S HOTELS AND RESORTS PVT LTD (Petitioner No.1/ Transferor Company) with MIRZA INTERNATIONAL LTD. (Petitioner No.2/ Transferee Company) in terms of Rule 16 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016(for Brevity “Rules).
2. The petitioners companies have prayed for sanctioning of the Scheme of Amalgamation in the petition and notices to be issued to the authorities concerned in relation to the date of hearing of the petition and calling for objections. The First Motion application seeking directions for dispensation of the requirement of the convening meetings of the Equity Shareholders, Secured Creditors and Un- secured Creditors of both the Applicant Companies with an alternative prayer for convening of separate meetings of the Equity Shareholders, Secured Creditors and Un-secured Creditors of the Applicant Transferee Company through Video Conferencing with facility of remote e-voting under the supervision of this Tribunal vide CA (CAA) No.21/ALD/2023 and based on such application moved underSections 230-232 of the Companies Act, 2013, , (for brevity, the ‘Act’), necessary directions were issued on 26th October, 2023.
3. As per the first motion order dated 26.10.2023, while dispensing with the meetings, it was directed that the Applicant Companies shall make specific prayer for sending notices to; (a) the Central Government through the office of the Regional Director, Northern Region, Ministry of Corporate Affairs, New Delhi;
(b) the Registrar of Companies, Uttar Pradesh, Kanpur; (c) the Official Liquidator, Uttar Pradesh, Prayagraj; and (d) the Income Tax Department by disclosing the PAN numbers of both the Applicant Companies in the title of the Second Motion Petition. It was also further directed that the Transferee Company will serve individual notices of the proposed Scheme of Amalgamation to all the Secured Creditors and Un-secured Creditors by Speed Post or Registered Post or Courier or by hand or through e-mail, inviting their objections/comments to the proposed Scheme of Amalgamation which may be filed with this Tribunal within a period of 30 days from the date of such notice.
4. It is stated by the Ld. Counsel representing the petitioner that the specific prayer as directed by this Tribunal has already been made with respect to the issuance of the notice to the aforesaid authorities. He also further states that the individual notices are being issued as per directions contained in the order dated 26.10.2023 within a period of 30 days and the affidavit of compliance shall also be filed immediately thereafter within a period of ten days.
5. The main objects, date of incorporation, authorized and paid-up share capital, and the rationale of the Scheme have been discussed in detail in the order dated 26th October, 2023.
6. Notices are accordingly issued in the present petition to be served by the Petitioner Companies through speed post within two weeks, to the following Authorities namely, (i) Central Government through Regional Director (Northern Region), Ministry of Corporate Affairs, New Delhi; (ii) Registrar of Companies, Uttar Pradesh, Kanpur; (iii) Official Liquidator, Allahabad, Uttar Pradesh; and (iv) Jurisdictional Income Tax Authority by mentioning the PAN of the Company along with a copy of this petition in soft copy as well as hard copy.
7. Additionally, notice be issued to the Income Tax Department through the Principal Chief Commissioner of Income Tax, Lucknow mentioning the Assessing Officer with whom the petitioner companies are getting assessed as informed by the Ld. Counsel for the petitioner as per the PAN of the petitioner companies.
8. In addition to the above public notices, the notice of hearing will also be advertised in “Business Standard” in English and Hindi language, having wide circulation in Lucknow and Delhi NCR Editions by not less than 10 days before the next date fixed for hearing.
9. The petitioner companies shall at least 7 days before the date of hearing of the petition, file an affidavit of service regarding newspaper publication with newspaper clippings, as well as service of notices on the authorities specified above. Objections, if any, to the ‘Scheme’ contemplated by the authorities to whom notice has been given, may be filed within 30 days of receipt of notice failing which, it will be considered that there is no objection to the approval of the ‘Scheme’ on the part of the authorities and this Tribunal will proceed in the matter, subject to other conditions being satisfied as may be applicable under the Companies Act, 2013and relevant rules framed thereunder. The petitioner companies shall also file an affidavit stating the objections received from public pursuant to publication of notice of hearing in the newspapers.
10. The next date of hearing of the petition shall be on 9th January, 2024 for further consideration of the approval of the scheme as contemplated between the petitioner companies.
11. The registry shall also report before the date fixed for next hearing, as to whether any objections have been received to the proposed ‘Scheme’.
