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2025 Supreme(Online)(NCLT) 5235
NATIONAL COMPANY LAW TRIBUNAL
SMT. LAKSHMI GURUNG, SH. HARIHARAN NEELAKANTA IYER, JJ
Lennox Investment Private Limited – Appellant
Versus
Bhagyam Investment Holding Limited – Respondent
C.A. (CAA) 152/MB/2023
For the Appellants/Petitioners: Adv. Nausher Kolhi, Adv. Ajit Singh Tawar, Adv. Kushal Kumar, Adv. Sakshi Ghadge i/b Ajit Singh Tawar & Co.
For the Respondents: Adv. Gaurav Jaiswal, Company Prosecutor
The tribunal sanctioned the merger scheme, determining it compliant with relevant provisions, fair to stakeholders, and beneficial, confirming that no prior RBI approval was necessary for the cross-border merger.
Headnote:(A) Companies Act, 2013 - Sections 230 to 234 and Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - Merger by Absorption - Petition for sanction of merger between Transferor Company incorporated in Seychelles and Transferee Company in India - Tribunal heard objections and undertakings by Regional Director - Approval granted as Scheme fulfills legal compliance and is beneficial for stakeholders. (Paras 1-27)
(B) Cross-Border Merger - Nature of compliance and regulatory obligations applicable when a foreign company merges with an Indian company - Prior approval from RBI not required due to deemed approval under regulations. (Paras 13-14, 22)
(C) Company Compliance - Requirement for statutory compliance, safeguarding of creditor interests, and registration/filing with regulatory authorities should be ensured post-merger - Any future liabilities or violations remain enforceable against Transferee Company. (Paras 23-30)
| Table of Content |
|---|
| 1. factual background of the merger petition. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. details on the rationale and compliance for the merger. (Para 8 , 9 , 10 , 11 , 12 , 13 , 14) |
| 3. court's observations regarding the regulatory compliance. (Para 15 , 16 , 17 , 18 , 19 , 20 , 21) |
| 4. approval and implications of the merger scheme. (Para 22 , 23 , 24 , 25 , 26) |
| 5. conclusion and order granting approval for the scheme. (Para 27 , 28 , 29 , 30) |
ORDER
1. Heard the Ld. Counsel for the Transferee Company and Ld. Representative for the Regional Director, Western Region.
2. The present petition is filed by Lennox Investment Private Limited seeking sanction of the Scheme of Merger by Absorption (‘Scheme’) of Bhagyam Investment Holding Limited a foreign limited liability company (‘Transferor Company’) with Lennox Investment Private Limited (‘Petitioner Company/Transferee Company) under Section 234 read with Sections 230 to 232 of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016.
3. The Scheme involves Merger of Transferor Company which has registered office at Suite 208, Eden Plaza, Eden Islands, Mahe, Seychelles and hence is not petitioner before us.
4. The Learned Counsel submits that the registered office of the Transferee Company is in Mumbai Maharashtra, therefore it is under the territorial jurisdiction of this Tribunal. The present scheme of Amalgamation includes Inbound Cross-border mergers.
5. The Learned Counsel submits that the Petition has been filed on 22.03.2024 after complying with the Order dated 18.10.2023 passed in the C.A.(CAA)/152/MB-III/2023. The Tribunal vide said Order dispensed the meeting of Shareholders, unsecured creditors and secured creditors of the Petitioner Company and also directed the service of Notices upon the regulatory authorities. It is submitted that the Petitioner Company has issued notices to respective statutory and regulatory authorities and have filed Affidavit of Service dated 16.05.2024 which shows that all concerned authorities have been served.
6. The Learned Counsel submits that Appointed date of Scheme of Amalgamation is 1st April, 2023.The Learned Counsel further submits that the first motion application i.e. C.A.(CAA)/152(MB)2023 was filed on 06.06.2023 with this Tribunal and therefore the Appointed Date complies of the circular no. F. No. 7 /12/2019 /CL-l dated 21.08.2019 issued by the Ministry of Corporate Affairs.
7. The Learned Counsel submits that the Board Meetings of the Transferor and Transferee Company were held on 03.05.2023. The Copy of Board Resolutions are annexed to the Petition as Annexure C and F respectively (Pg.66-68/ Pg. 87).
8. Nature of Business
8.1 It is submitted that the Transferor Company was incorporated on 08.07.2021 under the provisions of the International Business Companies Act 2016 and is primarily an investment holding company
8.2 It is submitted that the Transferee Company was incorporated on 23.09.2021 under the Companies Act, 2013 and is engaged in the business and other allied activities.
9. Share Capital
The Learned Counsel for the Applicant Companies submits that the Authorized, Issued, Subscribed and Paid-up Share Capital of the Transferor Company and Transferee Company as on 31.03.2023 are as follows:
9.1 Non- Petitioner Company/ Transferor Company
| Particulars | Amount (in USD) |
| Authorised Capital Ordinary equity shares of United Dollars (USD) 1 | 1,000,000 |
| TOTAL | 1,000,000 |
| Issued, Subscribed and Paid up Capital Ordinary equity shares of USD 1 each | 6,80,500 |
| TOTAL | 6,80,500 |
It is submitted that, subsequent to 31.03.2023 and as on date, there has been no change in the stated capital of the Transferor Company.
9.2 Petitioner Company/ Transferee Company
| Particulars | Amount Rs. |
| Authorised Capital 1,00,000 equity shares of face value of INR 10 /- each. | 10,00,000 |
| TOTAL | 10,00,000 |
| Issued, Subscribed and Paid up Capital 10,000 equity shares of face value of INR 10/- each | 1,00,000 |
| TOTAL | 1,00,000 |
It is submitted that, Subsequent to
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