Corporate Restructuring, Valuation and Insolvency · Documentation - Merger and Amalgamation

NCLT Petition for Amalgamation: Application, Affidavit and Order

Updated 11 October 2026 · Fact-checked

In a regular merger you go to the NCLT twice: first a company application asking for directions to hold meetings, then a petition asking it to sanction the scheme. Each is backed by an affidavit. Notices go to the authorities, the Tribunal passes the sanctioning order, and the certified copy is filed with the Registrar in Form INC-28.

Understand Tribunal Petitions, Affidavits and Orders

A scheme of amalgamation does not bind anyone until a court-like authority sanctions it. For companies that do not use the fast-track route, that authority is the National Company Law Tribunal (NCLT) under sections 230 to 232 of the Companies Act, 2013. Your job as a Company Secretary is to put the right documents before the Tribunal, in the right order, with the right proof.

The process runs in two motions. In the first motion, each company files a company application with a supporting affidavit. It asks the Tribunal to direct how and whether meetings of shareholders and creditors are to be held, who will chair them, how notice will be given, and how it will be advertised. The Tribunal passes an order on these directions. The meetings are then held, and the chairperson files a report on the result.

In the second motion, the companies file a petition for sanction of the scheme, again with affidavits. The Tribunal fixes a hearing date, and notice of the hearing is given to the Regional Director, the Official Liquidator where relevant, and other authorities. Notice of the scheme also goes to authorities such as the Central Government, the Income-tax authorities, the RBI, SEBI, the Registrar, the stock exchanges and the CCI where applicable, so that they can make representations within the time allowed. A person can object to the scheme only if they meet the thresholds the Act sets for shareholding or debt.

The affidavits matter because the Tribunal relies on them as sworn proof. They confirm that the documents filed are true, that the scheme was approved by the required majority (a majority in number representing three-fourths in value of those voting), that no investigation or proceeding is pending that would affect the scheme, and that the notices were served. Typical annexures are the scheme, the valuation report, the board resolutions, the audited financials, the auditor's certificate on accounting treatment and the chairperson's report.

On hearing, if satisfied, the Tribunal passes the sanctioning order. It approves the scheme, usually fixes the transfer of assets and liabilities, deals with dissolution of the transferor without winding up, and may give directions on fees, employees and filings. The company must then file the certified copy of the order with the Registrar, in Form INC-28, within thirty days of receiving it. The scheme takes effect on filing the certified copy with the Registrar, as the order provides, and this effective date is distinct from the appointed date in the scheme. Compare this with the fast-track route in section 233, where the Central Government, not the Tribunal, ordinarily registers the scheme and the Tribunal is involved only if the Central Government objects.

Key rules to remember

Two-motion structure: First motion: company application + affidavit → directions for meetings. Second motion: petition + affidavit → sanction order; Name each motion and its purpose in an answer. The first motion does not sanction anything; it only gives directions.
Approval majority at meetings: Majority in number representing 3/4 in value of those present and voting; This is the general rule for each class. The Tribunal may dispense with a creditors' meeting in the circumstances the Act and Rules allow.
Filing the order with the Registrar: Certified copy of order → Form INC-28 → within 30 days of receipt; Time runs from receipt of the certified copy, not from the date of the order. Check the facts for the receipt date.
Fast-track contrast (section 233): Notice inviting objections from Registrar/OL and persons affected: 30 days; members: at least 90% of total shares; creditors: majority representing 9/10 in value; Registrar/OL may communicate objections to the Central Government within 30 days (s.233(4)); Central Government may apply to the Tribunal within 60 days of receipt of the scheme (s.233(5)); Use this only to contrast. It applies to small companies, a holding company and its wholly-owned subsidiary, and other prescribed classes, and a company covered may still choose section 232. If the Registrar/OL does not communicate any objection in 30 days, no objection is presumed.
Effect of order: Order sanctioning scheme + filing certified copy with Registrar → scheme effective as the order provides; transferor dissolved without winding up; The effective date and the appointed date are different. State both when the facts give them.

How to solve Tribunal Petitions, Affidavits and Orders questions

Use this order for any question on Tribunal petitions, affidavits and orders. It keeps your answer in the provision, facts, conclusion format.

1Identify the route. Ask whether the facts point to a regular scheme before the NCLT (sections 230 to 232) or a fast-track merger under section 233. Say so at the start.
2Name the stage the question is about: first motion application, meetings, second motion petition, hearing or post-order filing.
3List the documents for that stage: application or petition, affidavit, scheme, valuation report, resolutions, financials, auditor's certificate, notices and the chairperson's report.
4State who must receive notice: the Registrar, Regional Director, Official Liquidator, Income-tax authorities, RBI, SEBI, stock exchanges, CCI where relevant, and the Central Government. Give them the time to respond.
5Apply the facts: check dates, approval majorities, whether notices were served and whether affidavits cover every statement required.
6Describe the Tribunal's order and what it directs, and the effect once it is filed.
7Give the post-order compliance: certified copy, Form INC-28 within thirty days, revised authorised capital filing, and other Registrar filings.
8Conclude in one sentence: what the company should do, by when, and with what document.

Quickest way: Stage-document-deadline check

When to use it: Use when you have little time and the question asks 'what should the company do' or 'what documents are needed'.

Write the stage in one line: first motion, second motion or post-order.
List three things: the main filing, the affidavit, the notices.
Add the one deadline that matters: thirty days for INC-28 from receipt of the certified copy.
Close with the effect: the scheme takes effect on filing the certified copy, as the order provides, and the transferor stands dissolved without winding up.

Common mistakes in Tribunal Petitions, Affidavits and Orders

Treating the Tribunal petition as a single filing
Students merge the application for directions and the petition for sanction into one step.
Fix: Always describe two motions. The first obtains directions for meetings; the second seeks sanction after the meetings are held and reported.
Counting the thirty days for INC-28 from the date of the order
The order date is the most prominent date in the facts.
Fix: Count from receipt of the certified copy. Circle the receipt date in the question before computing.
Forgetting notices to authorities
Students focus on shareholders and creditors only.
Fix: Add a standard line: notice to the Central Government, Income-tax authorities, RBI, SEBI, Registrar, stock exchanges, Official Liquidator and CCI where applicable, so they can make representations.
Writing the affidavit as a copy of the petition
Students think it only repeats the petition.
Fix: State that the affidavit is sworn proof of facts: true copies annexed, approval by the required majority, no pending proceedings that affect the scheme, and service of notices.
Applying section 233 rules to a regular NCLT scheme
Both deal with mergers and the fast-track thresholds are easy to remember.
Fix: Use section 233 only when the companies are small companies, or a holding company and its wholly-owned subsidiary, or another prescribed class. Otherwise answer under sections 230 to 232.
Assuming the scheme is effective on the date of the order
Students stop at the sanction.
Fix: Say the scheme takes effect on filing the certified copy of the order with the Registrar, as the order provides, and distinguish this effective date from the appointed date in the scheme.

Worked examples

Example 1

Alpha Textiles Private Limited, Surat, proposes to merge into Beta Industries Limited, Mumbai, under a scheme that is not eligible for fast track. Advise the companies on the documents and steps for the first motion before the NCLT.

Show the solution

Route: the scheme is not eligible for section 233, so it goes before the NCLT under sections 230 to 232.
Filing: each company files a company application, together with an affidavit, before the Bench having jurisdiction over its registered office, or a combined application where the Tribunal permits.
Annexures: the draft scheme, the board resolutions approving it, the valuation report and share exchange ratio, the latest audited financial statements, the auditor's certificate on accounting treatment, and lists of shareholders and creditors.
Affidavit: it confirms that the documents are true copies and the facts stated are correct, and that no proceeding pending against the companies affects the scheme.
Prayer: the application asks for directions to convene meetings of equity shareholders and creditors (or to dispense with them where permitted), to appoint a chairperson, to fix the quorum and notice period and to arrange advertisement.
Result: the Tribunal passes an order giving these directions; the companies then hold the meetings and the chairperson files a report.

Answer: Alpha and Beta file company applications with supporting affidavits and annexures in the first motion. The Tribunal's order gives directions for the meetings. Only after the meetings and the chairperson's report can they file the second-motion petition for sanction.

Example 2

The NCLT sanctions the scheme of amalgamation of Gamma Chemicals Limited into Delta Pharma Limited by an order dated 10 March 2027. Delta receives the certified copy on 15 March 2027. By what date must Delta file the order with the Registrar, and in which form? What happens once it is filed?

Show the solution

Identify the requirement: the certified copy of the sanctioning order must be filed with the Registrar within thirty days of receipt.
Identify the form: Form INC-28.
Compute the date: thirty days from 15 March 2027. March has 31 days, so 16 days remain in March after the 15th. The remaining 14 days fall in April, giving 14 April 2027.
Apply the effect: the scheme takes effect on filing the certified copy with the Registrar, as per the terms of the order. This effective date is distinct from the appointed date stated in the scheme. Gamma's property and liabilities pass to Delta as the order provides, and Gamma stands dissolved without being wound up.
Add related compliance: Delta should also update its authorised capital and pay the fee on the revised capital, with credit for fees already paid by Gamma on its authorised capital, as the rules provide.

Answer: Delta must file the certified copy in Form INC-28 on or before 14 April 2027. On filing, the scheme takes effect as the order provides (the effective date is distinct from the appointed date), Gamma's undertaking vests in Delta and Gamma is dissolved without winding up.

Exam tips

Begin every answer by naming the route: NCLT under sections 230 to 232 or fast track under section 233. This frames the rest of your answer.
Write the two-motion structure as a short list. Examiners reward the sequence: application, directions, meetings, report, petition, hearing, order, filing.
When dates are given, compute the INC-28 deadline from receipt of the certified copy and show the working.
Paper 6 is not an open book paper (only the elective papers are), so memorise the document lists and the notice recipients.
Finish drafting questions with the prayer clause. A petition without a clear prayer loses marks.

Practice questions from Documentation - Merger and Amalgamation

Tribunal Petitions, Affidavits and Orders: frequently asked questions

What is the difference between the company application and the petition in an NCLT merger?

The company application is the first motion. It asks the Tribunal for directions on meetings, notices and advertisement. The petition is the second motion, filed after the meetings, asking the Tribunal to sanction the scheme.

Within what time must INC-28 be filed after the NCLT merger order?

The certified copy of the order must be filed with the Registrar in Form INC-28 within thirty days of receiving it. The period runs from receipt of the certified copy, not from the date of the order.

Why are affidavits needed in a scheme petition?

The Tribunal relies on sworn statements to confirm that the filed documents are true, notices were served, the required majority approved the scheme and no pending proceedings affect it. Without the affidavits, the Tribunal may not proceed.

Does a section 233 fast-track merger also need a Tribunal petition?

Not ordinarily. Notice inviting objections goes out with a 30-day period, members holding at least 90% of total shares approve, and creditors approve by a majority representing nine-tenths in value. The Registrar or Official Liquidator may communicate objections to the Central Government within 30 days; if none are made, no objection is presumed and the Central Government registers the scheme. The Tribunal becomes involved only if the Central Government applies, within sixty days of receipt of the scheme, to have it considered under section 232.