Document Fragment View

Matching Fragments

4.1 Whether CERC passed the Impugned Order contrary to the settled position of law that the legal status of the transferee company pursuant to a merger will remain intact?
4.2 Whether CERC failed to appreciate that the shareholding pattern of the transferee company pre and post-merger was identical resulting in no change in ownership?
4.3 WhetherCERC erred in directing the Appellant to apply for fresh registration with NLDC to avail legitimate REC benefits?
(b) Post-merger, all the shareholders and directors of holding company (erstwhile Techno) became the shareholders and board members of subsidiary company (Simran) respectively.
(c) Clause 11.5 of the Scheme of Amalgamation specified that the shareholding pattern should not undergo any change post and pre-merger. The Appellant gave effect to the mandate of Clause 11.5 of the Scheme of Amalgamation by allotting the shares to the shareholders in the transferee company (Simran) in the same ratio in which they were holding shares in the transferor company Judgment of Appeal No. 57 of 2020 (erstwhile Techno) without any consideration. In support, the Appellant has already placed on record the shareholding pattern of the transferor company and the transferee company along with the Memorandum of Association and Article of Association for pre-

merger and post-merger in the Appeal.

(d) Promoters' shareholding and management control is the same pre-

and post-merger.

(e) Additionally, pre- and post-merger, the registered office of the transferee company is the same i.e. C-218, ground floor, Sector- 63, Noida 201 307, Gautam Buddha Nagar, Uttar Pradesh, 201307. This is evident from the Order of Ld. NCLT recording the addresses of the respective companies involved in the merger.

5.10 Further, NLDC's contention that ownership of a company is not to be determined based on the shareholding of a company, is erroneous and contrary to the law. In this regard, Appellant relies on the judgment of the Hon'ble Supreme Court in Hindustan Lever vs. State of Maharashtra, (2004) 9 SCC 438 wherein it was held as under: -

9.5 Learned senior counsel for the Appellant further submitted that it is a settled position of law that if a company undergoes a change-in its legal status, then its fifth part of the identification no. (CIN) changes. Learned counsel in this regard placed reliance on the CERC's Order dated 09.10.2018 in Tadus Wind Energy Private Limited vs. NLDC 2018 SCC OnLine CERC 202 wherein it was held that in a case where CIN of the company does not change, the legal status of the company remains intact. It would be seen that pertinently, CIN of Simran pre-and post-merger has remained the same. Further, the PAN, TAN, GST numbers etc. of the Simran have not undergone any change pre-and post-merger. Further, it is evident from the provisions of section 232 (3) of the Companies Act, 2013, no existing property or right of the existing company i.e. Simran cease to exist. Accordingly, pursuant to the merger, transferee company's rights, under law are now a combination of pre-existing rights which previously belongs to the transferor company.