ORDER

This is a joint Second Motion Petition filed by the Petitioner Companies namely; BMD Renewable Energy Private Limited (Petitioner Company No.1/Transferor Company) and BMD Power Private Limited (Petitioner Company No.2/ Transferee Company), for the sanction of Scheme of Amalgamation (for brevity ‘Scheme’) under Sections 230-232 of the Companies Act, 2013 (for short to be referred hereinafter as the ‘Act’) in terms of Rule 16 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 (for brevity, ‘Rules’). The Petitioner Companies have prayed for sanctioning of the Scheme of Amalgamation between the respective companies.

2. The matter was relisted on 03.03.2023 as the ROC made observations with regard to the non-filing of e-form MGT-6 and secured loan reflecting in the charge details on MCA-21 portal which was less than the secured loan shown in the balance sheets of Transferee Company. It was also pointed out that the Transferor Company is appearing to be operative as NBFC. But, the same was not registered as NBFC with the Reserve Bank of India. The Petitioner Companies have not served notices to the Reserve Bank of India nor they have filed any No Objections from the Reserve Bank of India. The reply filed by the petitioner companies do not address these objections comprehensively. The compliance affidavit was filed vide Dairy No. 00090/14 dated 14.03.2023 complying with the above-mentioned requisites. It is noted that, no reply has been received from the RBI leading to the presumption that they have no objection to the statements made by the petitioners.

3. The Petitioner Companies filed the First Motion Application bearing Company Application No. CA (CAA) No.32/Chd/Hry/2021 seeking directions for dispensing with the meetings of Equity shareholders, Secured Creditors and Unsecured Creditors of both the the Applicant Companies, Based on the above-mentioned application moved under Sections 230-232 of the Companies Act, 2013, (for brevity, the ‘Act’) necessary directions were issued on 05.01.2022. The meetings of equity shareholders, secured creditors, and unsecured creditors of all the applicant companies were dispensed with for the reasons mentioned in the aforesaid orders. The main objects, date of incorporation, authorized and paid-up share capital, and the rationale of the Scheme had been discussed in detail in the order dated 05.01.2022.

4. In the Second motion proceedings, certain directions were issued by this Tribunal by order dated 22.03.2023 and the same was compiled by filing an affidavit vide Diary No. 00090/2 by Transferor and 00090/3 by Transferee dated 24.05.2022. The notice of hearing was published in “Business Standard” (English) and “Business Standard” (Hindi), both Delhi-NCR editions, on 08.04.2022. The original copies of the newspapers are attached as Annexure-A and B, respectively of the aforesaid affidavit. It has also been stated in the affidavit that copies of notices were served upon the :

4.1 Central Government through Regional Director (Northern Region), Ministry of Corporate Affairs;

4.2 Registrar of Companies, NCT of Delhi and Haryana;

4.3 Official Liquidator (attached to Punjab and Haryana High Court); 4.4 The jurisdictional Income Tax Department, by way of speed post.

Acknowledgement of receipts and original postal receipts along with the tracking reports are attached from Annexures C to F of the aforesaid affidavit. Fresh Notices dated 10.05.2022 were also issued to these authorities and are attached as Annexures “G” to “I” to the same Affidavit

5. The Petitioner Companies have deposed by way of affidavits that the Petitioner Companies are not governed by any sectoral regulators and therefore no prior notice is required to be sent by them to any sectoral regulator. It is further deposed that the proposed scheme of amalgamation doesn’t meet the threshold requirement under Section 5 of the Companies Act, 2002. Hence, it is stated that no intimation/approval of the Competition Commissio