Purple Medical Solutions Pvt Ltd v. N/A

better customer service for both the entities which can lead to better operational efficiency and achievement of value creation.

(b) Consolidation of the activities by way of amerger by absorption will lead to synergies of operations and a stronger and wider capital and financial base for future growth/expansion.

(c) Merging the operations of the Transferor Company and Transferee Company will result in an entity that is more vertically integrated and has significantly improved operational flexibility, thereby enabling the Transferee Company to provide newer, better and more cost-effective solutions and services to its customers and to the Transferor Company's customers.

(d) The merger will result in economies of scale, reduction in overheads, administrative, managerial and other expenditure, operational rationalisation, organisational efficiency, and optimal utilisation of various resources. It will also prevent cost duplication and the resultant operations would be substantially cost-efficient.

(e) The managerial expertise of the Transferor Company and Transferee Company will be combined giving additional strength to the Transferee Company. Consequently, the Transferee Company will offer a strong financial structure to all its creditors including the creditors of the Transferor Company, facilitate resource mobilisation and achieve better cash flows. This would also contribute substantially towards enhancement of shareholder's value of the Transferee Company.

(f) The increased asset base of the Transferee Company and greater revenue inflow would be to the benefit of all the shareholders and creditors of the Transferor Company and the Transferee Company, who would continue to be associated with the Transferee Company.

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(g) The Transferee Company would have better financial viability and clearer focus, which would be in the interests of all its shareholders and creditors including the shareholders and creditors of the Transferor Company.

(h) The proposed merger will enable entities to use their respective business skills, know how, experience and expertise to establish, develops, operate and manage the consolidated customer base.

(i) The proposed merger will reduce duplication of various operating, managerial and administrative functions.

(j) The proposed merger will result in the combination of manpower of both the companies and a single management structure.

(k) The proposed merger will result in greater value of stakeholders than could be delivered as separate companies.

(l) The combined managerial and technical expertise would enable the Transferee Company to develop a business model that would be more competitive and cogent.

5. The Petitioner/Transferee Companyhas approved the said Scheme of Merger by passing the board resolutions at BoardMeeting held on February 21, 2019 whichis annexed to the Company Petition.

6. The Learned Counsel for the Petitioner/Transferee Company submits that this Company Petition is filed in consonance with sections 230-232 of the Companies Act, 2013 along with the Order passed in the connected CA (CAA) No.1693/2019 by this Tribunal.

7. The Learned Counsel for the Petitioner/Transferee Company submits that in pursuance of an Order dated November 05, 2019

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passed by this Tribunal in CA (CAA) No.1693/2019, meeting of the Equity Shareholders of the Petitioner/Transferee Company was dispensed with in view of the affidavits of consent obtained from all the Equity shareholders of the Petitioner/Transferee Company.

8. The Learned Counsel for the Petitioner/Transferee Company submits that in pursuance of an Order dated November 05, 2019 passed by this Tribunal in CA (CAA) No.1693/2019,Meeting of the Sole Secured Creditor andUnsecured Creditors of the Petitioner/Transferee Company was dispensed with in view of the affidavits of consent obtained from sole secured creditor and unsecured creditors of the Petitioner/Transferee Company.

9. The Learned Counsel for the Petitioner/Transferee Company states that the Petitioner/Transferee Companyhas complied with all requirements as per directions of this Tribunal and they have filed necessary affidavits of compliance in this regard.

10. The Regional Director (Western Region), Ministry of Corporate Affairs, Mumbai, has filed his report dated April30, 2020 inter alia stating therein that save and except as stated in paragraph IV of the said report, it appears that the Scheme is not prejudicial to the interest of shareholders and public.

11. In paragraph IV of the said report, the Regional Director has stated that:-

(a) In compliance of AS-14(Ind AS-103), the Petitioner Companiesshall pass such accounting entries which are necessary inconnectionwith the scheme

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to comply with other applicable AccountingStandards such as AS-5(Ind AS-8) etc.

(b) As per Definitions of the Scheme.

"Appointed Date" means January 1, 2019 the date effect from which this scheme shall come into effect or such other date(s) as may be fixed or approved National Company Law Tribunal or any other competent authority.

"Effective Date" means the last of the dates on which certified copies of the order(s) of National Company Law Tribunal ("NCLT") vesting the assets, property, liabilities, rights, duties, obligations and the like of Transferor Company in the Transferee Company are filed with the Registrar of Companies, Maharashtra at Mumbai. Any references in the Scheme to "upon coming into effect of this scheme" or "Scheme coming into effect" or "Scheme becomes effective" shall mean "the Effective Date".

Further, the petitioners may be asked to comply with the requirements and clarified vide circular No.7/12/2019/CL-1 dated 21.08.2019 issued by the Ministry of Corporate Affairs.

(c) ROC Mumbai Report dated 21.02.2020 has mentioned following observations:

"Interest of the Creditors should be protected." In this regard, petitioner Companies have to undertake to clarify the same.

(d) The Hon'ble Tribunal may kindly seek the undertaking that this Scheme is approved by the requisite majority of members and creditors as per Section 230(6) of the Act in meetings duly held in terms of Section 230(1) read with sub section (3) to (5) of Section 230 of the Act and the Minutes thereof are duly placed before the Tribunal.

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(e) Petitioner/Transferee Company have to undertake to comply with Section 232(3)(i) of Companies Act, 2013, where the transferor company dissolved, the fee, if any paid by transferor Company on its authorised capital shall be set off against any fees payable by transferee company on its authorised capital subsequent to the amalgamation thereof, petitioner to affirm that they comply the provisions of the Section.

(f) The registered office of the Transferor Company MIV Therapeutics (India) Private Limited is situated in the state of Gujaratfalls within the jurisdiction of this Hon'ble NCLT, Ahmedabad Bench. Accordingly, similar approval may be obtained by the Transferor Company from Hon'ble NCLT at Ahmedabad respectively.

(g) The Hon'ble NCLT may kindly direct to the petitioners to file an undertaking to the extent that the Scheme enclosed to the Company Application and the Scheme enclosed to the Company petition are one and the same and there is no discrepancy or deviation.

12. In response to the observations made by the Regional Director, the Petitioner/Transferee Company has clarified as under:

(a) As far as observation of Regional Director, Western Region, Mumbai, as stated inparagraph IV (a) of his report is concerned, the Petitioner/Transferee Companythrough itsCounsel states thatthe Petitioner/Transferee Company undertake that in addition tocompliance of AS-14 (Ind AS-103), they shall pass such accountingentries as may be necessary in connection with the Scheme to complywith all other applicable Accounting Standards such as AS-5(Ind AS-8), etc.

(b) As far as observation of Regional Director, Western Region, Mumbai, as stated inParagraphIV (b) of his report is concerned, the Petitioner/Transferee Companythrough itsLearned Counsel submits that:

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The Appointed date means January 1, 2019 as mentioned in para 3.3 of the Scheme, which is in compliance with Section 232(6) of the Companies Act, 2013.

The Scheme shall take effect on the date on which certified copyof the Order of the Hon'ble NCLT is filed by the Petitioner/Transferee Company with the Registrar of Company andshall be deemed to be effective from the Appointed Date i.e. January 1, 2019. The aforesaid Appointed Date complies with the requirementsand clarification provided in circular No.7/12/2019/CL-1 dated 21.08.2019 issued by the Ministry ofCorporate Affairs.

(c) As far as observation of Regional Director, Western Region, Mumbai, as stated inparagraph IV (c) of his report is concerned, the Petitioner/Transferee Companythrough it'sLearned Counsel states thatthe interest of Creditors have protected as per clause 10 of the Scheme which state that the Scheme does not involve any compromise or composition with thecreditors of the transferor and the Transferee Company and the rights of thecreditors of the Transferor Company and the Transferee Company shall not beaffected in any manner. He further submits that there will not be any reduction inamounts payable to the creditors of the Transferor Company and theTransferee Company, post sanctioning of the Scheme.

(d) As far as observation of Regional Director, Western Region, Mumbai, as stated inParagraphIV (d) of his report is concerned, the Petitioner/Transferee Companythrough itsLearned Counsel states that the meetings of members and creditors of Petitioner/Transferee Companyhas been dispensed as per the order dated November 5, 2019 passed by the NCT, Mumbai Bench in Company Scheme Application No.CA (CAA) No.1693/MB/C-IV/2019.

(e) As far as observation of Regional Director, Western Region, Mumbai, as stated inparagraph IV (e) of his report is concerned, the

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Petitioner/Transferee Companythrough itsLearned Counsel states thatthe Authorised Share Capital of the transferor company shall be merged with that of Transferee Company in terms of clause 13 of the Scheme in accordance with the provisions of Section 232(3)(i) of Companies Act, 2013 and further undertakes to pay such amount with the Registrar of Companies, if required in line of provisions of Section 232(3)(i) of Companies Act, 2013.

(f) As far as observation of Regional Director, Western Region, Mumbai, as stated inParagraphIV (f) of his report is concerned, the Petitioner/Transferee Companythrough itsLearned Counsel states that petition filed by the Transferor Company has been sanctioned by Hon'ble NCLT, Ahmedabad Bench by its order dated February 10, 2020.

(g) As far as observation of Regional Director, Western Region, Mumbai, as stated inparagraph IV (g) of his report is concerned, the Petitioner/Transferee Company submits that the Scheme enclosed to the Company Application No. 1693 of 2019 and Company Petition No. 4518 of 2019 are one and the same and there is no discrepancy or change made.

13. The observations made by Regional Director, Western Region, Mumbai have been explained by the Petitioner/Transferee Company in para 12 above.Moreover, each of the Petitioner/Transferee Company undertakes to comply with all statutory requirements, if any, as required under the Companies Act, 2013 and the Rules made thereunder. The clarifications and undertakings given by the Petitioner/Transferee Companyare hereby accepted by the Tribunal.

14. From the material on record, the Scheme appears to be fair,reasonable and is not violative to any provisions of law nor iscontrary to public interest.

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15. Since all the requisite statutory compliances have been fulfilled,the CompanyPetition in CP (CAA) No. 4518/2019 is made absolute in terms of prayer clause 26 of the Company Petition.

16. The Scheme is sanctioned herebyqua the Transferee Company, and the Appointed Date is fixed as 1^stJanuary 2019.

17. The Petitioner/Transferee Companyis directed to file a copy of this orderalong with a copy of the Scheme with theconcerned Registrar of Companies, electronicallyin e-FormINC-28, in addition to physical copy, within 30 days from thedate of receipt of the Order duly certified by the Deputy/Assistant Registrar of this Tribunal.

18. The Petitioner/Transferee Company to lodge a copy of this Order dulycertified by the Deputy/Assistant Registrar of this Tribunal,along with the Scheme, with the concerned Superintendent ofStamps, for the purpose of adjudication of stamp duty payable, ifany, within a period of 60 days from the date of receipt of theOrder.

19. All concerned regulatory authorities shall act on a copy of thisorder duly certified by the Deputy/Assistant Registrar of thisTribunal along with the Scheme.

20. Any person interested shall be at liberty to apply to the Tribunal in the above matter for any directions that may be necessary.

21. Pronouncedtoday (08.05.2020) in open Court. File pertaining to CP (CAA)/4518/2019 be consigned to records.

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Sd/- Sd/-

V. Nallasenapathy Rajasekhar V.K Member (Technical) Member (Judicial)

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