Sunday, March 2, 2025

TAKEOVER AGREEMENT

 

TAKEOVER AGREEMENT
(Between a Proprietorship Firm and a Private Limited Company)

This Takeover Agreement ("Agreement") is made and entered into on this ___ day of __, 20, by and between:

  1. [Name of Proprietor], an individual carrying on business under the name and style of [Name of Proprietorship Firm], having its principal place of business at [Address], hereinafter referred to as the "Proprietor" (which expression shall, unless repugnant to the context, mean and include his/her heirs, legal representatives, successors, and assigns);

AND

  1. [Name of Private Limited Company], a company incorporated under the Companies Act, 2013, having its registered office at [Address], hereinafter referred to as the "Company" (which expression shall, unless repugnant to the context, mean and include its successors and assigns).

WHEREAS:
A. The Proprietor is the sole owner of the Proprietorship Firm engaged in the business of [Nature of Business] and has agreed to transfer all its assets, liabilities, rights, and obligations to the Company. B. The Company desires to take over the business, assets, and liabilities of the Proprietorship Firm as a going concern on the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows:

1. TAKEOVER OF BUSINESS

1.1 The Proprietor hereby agrees to transfer, assign, and vest in the Company, and the Company agrees to take over and assume, the entire business of the Proprietorship Firm as a going concern. 1.2 The takeover shall include all tangible and intangible assets, goodwill, intellectual property, contracts, licenses, trade receivables, bank accounts, inventories, and liabilities of the Proprietorship Firm.

2. CONSIDERATION

2.1 The total consideration for the transfer shall be INR [Amount], which shall be paid by the Company to the Proprietor in the form of cash/equity shares/other mutually agreed terms. 2.2 The Proprietor shall execute all necessary documents to facilitate the smooth transfer of business and issue a No Objection Certificate (NOC) in favor of the Company.

3. TRANSFER OF EMPLOYEES

3.1 The Company shall have the right to retain the existing employees of the Proprietorship Firm on terms and conditions as mutually agreed upon. 3.2 The Proprietor shall ensure that all statutory dues, including provident fund, gratuity, and salary payments, are cleared up to the date of takeover.

4. TRANSFER OF LIABILITIES

4.1 The Company shall assume all disclosed liabilities of the Proprietorship Firm from the effective date of takeover. 4.2 Any undisclosed liabilities or contingent liabilities arising from acts or omissions before the takeover shall remain the sole responsibility of the Proprietor.

5. REPRESENTATIONS AND WARRANTIES

5.1 The Proprietor represents that:

  • The Proprietorship Firm is free from any legal encumbrances or undisclosed liabilities.
  • All licenses and approvals necessary for the business are valid and in good standing. 5.2 The Company represents that:
  • It has the authority to enter into this Agreement and complete the takeover.
  • It shall comply with all statutory requirements for the takeover.

6. INDEMNITY

6.1 The Proprietor agrees to indemnify and hold the Company harmless from any claims, damages, or liabilities arising from the business operations before the date of takeover. 6.2 The Company agrees to indemnify and hold the Proprietor harmless from any liabilities arising after the takeover.

7. EFFECTIVE DATE & CLOSING

7.1 The takeover shall be effective from [Effective Date]. 7.2 The Proprietor shall hand over all books of accounts, records, and necessary documents to the Company on or before the closing date.

8. CONFIDENTIALITY

Both parties agree to maintain confidentiality regarding the terms of this Agreement and any proprietary business information.

9. DISPUTE RESOLUTION

Any disputes arising from this Agreement shall be resolved through arbitration in accordance with the Arbitration and Conciliation Act, 1996, and the venue shall be [City].

10. GOVERNING LAW

This Agreement shall be governed and construed under the laws of India.

11. MISCELLANEOUS

11.1 This Agreement constitutes the entire understanding between the parties. 11.2 No modification shall be valid unless made in writing and signed by both parties.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

SIGNED AND DELIVERED BY:
For [Proprietorship Firm Name]
(Proprietor)
[Name of Proprietor]

For [Private Limited Company Name]
(Authorized Signatory)
[Name of Director/Authorized Representative]

 

Laws on Takeover of Business

 

In India, takeovers are governed by different laws depending on the type of entity involved. Since your case involves the takeover of a proprietorship firm by a private limited company, the following legal provisions apply:

1. The Companies Act, 2013

  • Section 230-232: Deals with compromises, arrangements, and amalgamations, which may be applicable in case of structured takeovers.
  • Board Resolution & Shareholder Approval: If a private limited company acquires a proprietorship, board approval is necessary.
  • Filing with the Registrar of Companies (ROC): Necessary filings, such as changes in capital structure (if shares are issued as consideration), must be made with the ROC.

2. The Indian Contract Act, 1872

  • The takeover is a contractual arrangement, so it must comply with contractual principles such as free consent, legality, and enforceability.

3. Income Tax Act, 1961

  • Capital Gains Tax: If the proprietorship transfers assets to the company, it may attract capital gains tax under Section 45.
  • Section 47: Provides certain exemptions for restructuring if assets are transferred in exchange for shares.
  • GST Implications: If the proprietorship is registered under GST, its registration must be canceled, and a new GST registration for the company may be required.

4. Goods and Services Tax (GST) Act, 2017

  • The takeover may be considered as a "supply of business" and may attract GST if consideration is involved.
  • Input Tax Credit (ITC) Transfer: The ITC from the proprietorship can be transferred under Rule 41 of CGST Rules.

5. Labour Laws & Employee Transfer

  • Shops and Establishments Act: Depending on the state, any change in ownership must be reported.
  • EPF & ESI Compliance: If employees are retained, the company must comply with Employees' Provident Fund (EPF) Act and Employees’ State Insurance (ESI) Act.

6. Transfer of Business Name & Licenses

  • Trade Licenses & Business Permits: The company must apply for new licenses or request a transfer, as proprietorship licenses cannot be directly transferred.
  • Trademark & Intellectual Property Rights: If the proprietorship owns trademarks, copyrights, or patents, they must be formally assigned to the company.

Would you like assistance with specific compliance or documentation related to your takeover?

 

Sunday, February 23, 2025

Application for Recovery of Wages

 

FORM - N

(See Rule 31)

Application for Recovery of Wages 

 

In the court of the Authority/Officer appointed under the West Bengal Shops and Establishment Act, 1968

 

APPLICATION NO. ____________________ 2025

 

BETWEEN

 

Mr. Indronil Roy, Son of Late Asim Kumar Roy, aged about 55 years, residing at Premises being no. 42G, Block, Baghajatin, Kolkata – 700086. Mobile No.: 9831832899. Email : indronil_roy2004@yahoo.co.uk

                                                                               ____________Applicant /Employee

 

AND

 

M/s. Giza Marketing Private Limited, having CIN: U51900MH1993PTC070426, and it’s Registered Office at Premises being No. 101/102, G. N. Tower, Off S.V. Road, Near Subway, Andheri (West), Mumbai – 400058, Phone No.: 02261405300, Email gizaoffice@oliviaindia.com and it’s Kolkata H.Q. at Premises being no. 2, Jodhpur Garden, (Old 5/1, Jodhpur Colony), Police Station Lake, Kolkata – 700045.

   ___________Opposite Party /Company 

 

I states as follows:

 

1.   I had joined M/s. Giza Marketing Private Limited, having CIN: U51900MH1993PTC070426, its’ office at Kolkata H.Q. at Premises being no. 2, Jodhpur Garden, (Old 5/1, Jodhpur Colony), Police Station Lake, Kolkata – 700045, on 8th day of January’ 2021, by way of the Company’s Offer Letter dated 08/01/2021, favouring Mr. Indronil Roy, residence of Premises being No. 42G, Block, Baghajatin, Kolkata – 700086, Tel. No. : 9831832899. The said Offer Letter dated 08/01/2021, contended as follows;

 

(a)    M/s. Giza Marketing Private Limited, having CIN: U51900MH1993PTC070426, have given appointment as Business Head East Zone (West Bengal), North East Region, Bihar, Jharkhand, Odissa, Nepal, Bangladesh and Bhutan.

 

 

 

 

(b)   Salary & Allowances:

 

§   Salary                       Rs.13,00,000/-p.a.(12+1 Bonus);

§   Local DA                   Rs.           500/- Per Day + Fuel

§   Ex Head Quarters     Rs.         1,000/- Per Day

§   Outstation AllowanceRs.        3,000/- Per Day

§   Mobile + Internet      Rs.         Actual

§   Travelling                 Rs.          Actual

 

(c)    Probation/ Confirmation : Initially be on probation for a period of six months from date of joining the Company, which may be extended or reduced at the sole discretion of the management.

 

(d)   General : The present designation is subject to change depending upon work assignment from time to time.

 

2.   The said Offer Letter dated 08/01/2021, did not describe my assignment or responsibility to carry in pursuing the cited post as Business Head East Zone (West Bengal), North East Region, Bihar, Jharkhand, Odissa, Nepal, Bangladesh and Bhutan. The Work assignment has never been given in writing to me.

 

3.   The said Offer Letter dated 08/01/2021, did not give any particulars of the service rules and regulations including conduct, discipline and administrative orders and such other rules or orders of the company which may come in force from time to time. M/s. Giza Marketing Private Limited, having CIN: U51900MH1993PTC070426, did never given any purported copy of the service rules and regulations including conduct, discipline and administrative orders and such other rules or orders of the company which may come in force from time to time. During tenure of my service, I did never find any of the service rules and regulations including conduct, discipline and administrative orders and such other rules or orders of the company which may come in force from time to time, whatsoever.

 

4.   My work has assigned purely as a Clerk in the office at Kolkata, as take notes of everything pursuing the delivery of the articles in dispatching and delivering the goods and articles at the depot (C&FA), including MIS Checking, attendance, indent preparation, preparation of sale projection submitted by the concerned officials of the respective state, forwarding the grievances and claims of the distributors and Stockists and maintenance report of the Kolkata Office. I used to forward all information to my reporting authority Mr. Rajesh Vailaya (NSM) at the Registered Office at Mumbai, who used to check & approve all claims, projections, office maintenance bill & everything. I had no authority to take any decision and to approve anything, whatsoever. Therefore my job has never been assigned with any responsibility. I was serving as a Clerk at the behest of the Company.

 

5.   Pertinently states that Super Stockists are working in various towns in eastern zone and has been appointed by the concerned area head of the particular region. They had sent details of concern parties to me, and my job is to forward the same to my reporting authority for his approval. Simultaneously, concerned manager has placed orders of super stockists by email and after checking I have only forwarded the same to the Registered Office of the Company. Accounts department at Mumbai release Proforma Invoice against any order and stock has been dispatched through C & FA depot after payment clearance. No credit policy in our entire system of the company has ever been found. The company has always sale their products in advance. Super Stockist has supply their stocks via sub distribution channels i.e. distributors or wholesalers. Sales team is only appointed for retailing support by the company. Stock’s once sold hasn’t been taken back by the company and that was also the main reason of some market disputes in the state of West Bengal & other areas. Sometime products not being accepted in the market or returned back by the retailers to distributors and they used to return the same to the Super Stockists. Due to cosmetics product related to skin, sometime old stocks or near to expiry products not acceptable & return back. The Company was not accepted to return back those stocks from the market or distributors or super stockists, which became the reasonable reason of disputes and after my joining I have faced so many grievances regarding such issues in the state of West Bengal and other areas. After my several request the company was agreed to return same stock only last year after 2.5 years of my joining but still not settled maximum damages & expiry stocks, which are lying in godown with super stockists in various areas. I was facing extreme mental pressure from various parties to resolve their problems, but no support has ever been given or forwarded by the company ever.

 

6.   The Company played much unethical role in dealing its business in its market field of the Cosmetic Industries. The Company did not redressing or striking of damage or expired stocks, even recently after my resignation some sticking old stock has been found in north eastern market and the concerned party has send his grievances to the Consumer Court. On several occasion I had asked my reporting authority in the company to redressed the issues of old stocks on priority but the company did not heed to that and the company continuing in its old practices to deliver the old / damage / sticking stocks of the cosmetics to the parties, which raised reasonable cause of disputes, while asking of the return of goods, so far, with the company. The Parties and the people has taken me as a responsible person for all these things, as my post has been cited as  Business Head East Zone (West Bengal), North East Region, Bihar, Jharkhand, Odissa, Nepal, Bangladesh and Bhutan, in the Company; But in reality my nature of Job is nothing more than a Clerk, which give a perfect illusions in the mind of the parties and the people at large, which causes much humiliation to me day by day, and everyday till I placed my resignation.

 

7.   I would like to mention one more important thing that the company has offered schemes time to time and that will reimburse through secondary claims submitted by the super stockists. This is very complicated system and concern area heads are submitting their respective super stockist claims to me and my duty is to check and forward the same to the account department of the registered office of the company. In this process sometime, super stockists has not been able to submit their claim timely or due to lack of some supporting documents, such claim was returned back by the company, though in any case, nothing was in my hand but Mr. Rajesh Vailaya has always tried to accused me for such delay and others.

 

8.   From last one year onwards, the Company has intentionally deducted salaries of sales personnel & BA (Women working in various retails counters to sale & promote the products of the Company) without any valid reason. Due to that reason most of the team was disappointed & some of them left their job.

 

9.   From last 6/7 months, the Company has not given salaries timely and sometime after 18th or 22nd days of the month salary release with deduction. Reason was delayed of payment against Parties, although the company hasn’t dispatched any stocks without getting any advance payment.

 

10.                Even I was also receiving my salaries after 19 /20 the days of the month.

 

11.                Due to all above mentioned reasons, I was getting frustrated and demoralized in working my clerkship carrying the banner as Business Head East Zone (West Bengal), North East Region, Bihar, Jharkhand, Odissa, Nepal, Bangladesh and Bhutan, with every passing day’s since last 6 /7 months. In April’ 2024, my Boss Vailaya has visited Kolkata and I asked him to relieve me, as I don’t feel comfortable. He said he will try to resolve issues but nothing happens.

 

 

 

 

 

 

12.                Therefore under such compelling circumstances I have submitted my resignation on 4th day of September’ 2024 and handed over my charges to Sale Coordinator & concerning manage for the State of West Bengal on 9th day of September’ 2024.

 

13.                Before, submitting my resignation, I have sent message to Mr. Vailaya and mentioned my mental states and frustration towards all the unethical happenings by the Company. For Sale de growth, the Company always blaming to concerned sales team and targeting me for the failure of others, the sales team always put several reasons including the concern of their salaries, etc.

 

14.                I have communicated all the concern which affected me directly & indirectly to the Company; But I have not get any positive response against my communication through message and the said Mr. Vailaya did not even respond me.

 

15.                Against my resignation mail dated 4th day of September’ 2024, I have received the acceptance of my resignation via email on 5th day of September’ 2024, with lots of unlawful conditions to settle my dues, including asking for NOC from concerned Super Stockists, submitting claims and asking for serving the notices for 21 (twenty one) days notice period concern. I have duly responded with all issues and explain in bellow mentioned words;

 

“Reply of the Company’s mail, first of all the Company have already accepted my resignation and matter is only related to the settlement of my pending dues from the company. In my position where direct money transaction not involved with SS, as per the practices adopted by the company, no NOC required and even it has not mentioned in the Offer Letter dated 8th day of January’ 2021. Our organization working in advance payment basis and direct money transfer required against Pl to release any dispatch. Billing directly from account department to HO to C&FA for dispatch. So there was no direct money transaction via any of us. As a business head, my duty was related to supervise managers in my jurisdiction state & office work including indent, orders, claims & submissions of attendance & expenses, which has never assigned to me, as the concern managers has placed the SS Orders and I have only forwarded the same to our account department. Even field staff & SS has been appointed as per the request of concern area head and I have only forwarded required documents to the Company for approval.”

 

 

 

 

16.                During 5th day of September’ 2024 and 16th day of September’ 2024, Mr. Vailaya has sent me three mails and repeated the same contents to me.

 

17.                During 4th day of September’ 2024 to 19th day of October’ 2024, I have sent several request through messages to release my dues but the said Mr. Vailaya always avoided my settlement request motivated.

 

18.                Lastly on 21st day of October’ 2024, the said Mr. Vailaya has sent me message and almost threatened me to take legal steps and inform my present organization about my incompetency to handle assign duties which was the reason of companies loss, although the company has worked on advance payment basis and there is no question of loss in any circumstances.

 

19.                The address of the applicant for the service of all notices and process is Mr. Indronil Roy, Son of Late Asim Kumar Roy, aged about 55 years, residing at Premises being no. 42G, Block, Baghajatin, Kolkata – 700086. Mobile No.: 9831832899. Email : indronil_roy2004@yahoo.co.uk

 

20.                M/s. Giza Marketing Private Limited, having CIN: U51900MH1993PTC070426, being the opposite party, is the person responsible for the payment of his/her wages under sub-section (1) of section 14 of the Act and his/her address for the service of all notices and processes is M/s. Giza Marketing Private Limited, having CIN: U51900MH1993PTC070426, and it’s Registered Office at Premises being No. 101/102, G. N. Tower, Off S.V. Road, Near Subway, Andheri (West), Mumbai – 400058, Phone No.: 02261405300, Email gizaoffice@oliviaindia.com and it’s Kolkata H.Q. at Premises being no. 2, Jodhpur Garden, (Old 5/1, Jodhpur Colony), Police Station Lake, Kolkata – 700045.

 

21.                The applicant's wages have not been paid for the following wages periods (s);

 

(a)  Salary for the month of August’ 2024 – Rs. 1,18,300/- (Rupees One Lakh Eighteen Thousand and Three Hundred) only;

(b)  Misc. Dues - Rs. 19,400/- (Rupees Nineteen Thousand and Four Hundred) only;

(c)  One Month Salary – Bonus for the period 2023-24 Financial Year – Rs. 1,18,300/- (Rupees One Lakh Eighteen Thousand and Three Hundred) only;

(d)  Total Dues approx as a sum of money being Rs. 2,56,000/- (Rupees Two Lakhs and Fifty Six Thousand) only.

 

22.                The applicant estimates the value of relief sought by is/her at the sum of Rs. 2,56,000/- (Rupees Two Lakhs and Fifty Six Thousand) only.

 

23.                The applicant prays that direction may be issued under sub-section (3) of section 14 for;

 

(a) Payment of his/her delayed wages as estimated or such greater or lesher amount as the Autorty/Officer may find to be dueAnd/Or Refund of the amount illegally deducted;

 

(b) Compensation amounting to Rs. 2,50,000/- (Rupees Two Lakhs and Fifty Thousand) only.

 

The applicant certifies that the statement of facts continued in this application isto the best of his/her knowledge and belief accurate. 

 

 

 

 

 

 

 

Signature or thumb impression of the person employed