Judgment:
$~21 *IN THE HIGH COURT OF DELHI AT NEW DELHI + CO.PET. 226 /2014 IN THE MATTER OF SAROJ IMPEX LIMITED & A NR PRIVATE ..... Petitioner Through: Mr. Praveen Kumar Mittal, Advocate for the Petitioners. Mr. Atma Sah, Assistant Registrar of Companies for the Regional Director. Mr. Rajiv Bhel Advocate for the official Liquidator. CORAM: HON'BLE MR. JUSTICE SANJEEV SACHDEVA ORDER
% 06.08.2014 SANJEEV SACHDEVA, J (ORAL) 1. This second motion joint Petition has been filed under sections 391 to 394 of the Companies Act, 1956 (“Act”) seeking sanction to the Scheme of Amalgamation Limited (“Scheme”) of Saroj Impex Private (hereinafter referred to as Transferor Company) with Elina Electrotech Private Limited ================================================ CO.PET. 226 /2014 1 (hereinafter referred to as Transferee Company) (Collectively referred as the Petitioner Companies). A copy of the Scheme has been enclose d with the petition.
2. The registered offices of the Petitioner Companies are situated at New Delhi, within the jurisdiction of this Court.
3. The details of respective dates of incorporation of the Petitioner Companies, their authorised, issued, subscribed and paid up capital have been set out in the petition.
4. The copies of the Memorandum and Articles of Association of the Petitioner Companies have been enclosed with the petition.
5. The copies of Resolutions passed by the Board of Directors of the Petitioner Companies approving the Scheme have also been filed along with the petition.
6. Learned counsel for the Petitioner Companies submits that no proceedings under sections 235 to 251 of the Companies Act, 1956 is pending against the Petitioner Companies. ================================================ CO.PET. 226 /2014 2 7. The Petitioner Companies had earlier filed CA (M) No.46 of 2014 seeking directions of this Court to dispense with the requirement of convening meetings of the Equity Shareholders. Vide order dated 14 th March, 2014, this Court allowed the application and dispensed with the requirement of convening meetings of Shareholders of the Petitioner Companies.
8. The Petitioner Companies have thereafter filed the present Petition seeking sanction of the Scheme. Vide order dated 21st April, 2014, notice in the Petition was directed to be issued to the Regional Director, Northern Liquidator. Citations Region were and also the Official directed to be published in Statesman (English, Delhi Edition) and Veer Arjun (Hindi, Delhi Edition). Affidavit of Service and Publication has been fil ed by the Petitioners showing compliance regarding service of the Petition on the Regional Director, Northern Region and the Official Liquidator, and also regarding publication of citations in the aforesaid newspapers on 7th July, 2014. Copies of the newspapers cuttings, in original, containing the publications have been filed along with the Affidavit of Service. ================================================ CO.PET. 226 /2014 3 9. In response to the notice issued, the Official Liquidator sought information from the Petitioner Companies. Based on the information received, the Official Liquidator has filed his report dated 31 st July, 2014, wherein he has stated that he has not received any complaint against the proposed Scheme from any person/party interested in the Scheme in any manner and that the affairs of the Transferor Company do not appear to have been conducted in a manner prejudicial to the interest of their members, creditors or to public interest as per 2 nd proviso of Section 394(1) of the Act.
10. In response to the notice issued in the Pe tition, Regional Director, Northern Region, Ministry of Corporate Affairs has filed his Affidavit dated 31.07.2014. Relying on Clause 9 of Part - III of the Scheme, he has stated that all the employees of the Transferor Company shall become the employees of the Transferee Company without any break or interruption in their services upon sanctioning of the Scheme by the Court. Despite notice, the Income Tax Authorities have not raised any objection with regard to the scheme.
11. The Learned Regional Director has s tated that the Registrar of Companies, Delhi has reported that ================================================ CO.PET. 226 /2014 4 authorized share capital of the transferee company is not sufficient for allotment of shares to the Transferor Company; hence Transferee Company may be advised to comply with the provisions of the Companies Act 2013.
12. In response to the aforesaid observation, Learned Counsel for the petitioner submits that scheme stipulates that the authorized capital of Transferor Company shall be merged with Transferee Company. Further Learned Counsel undertakes on behalf of the petitioner company that the authorized share capital of the Transferee Company shall be appropriately increased in accordance with the provisions of the Companies Act 2013.
13. In view of the aforesaid clarification and undertaking given by the Petitioners, the concern of the Regional Director has been duly addressed.
14. Learned Counsel for the Petitioner Companies submits that no objection has been received to the Scheme of Amalgamation from any other party confirming that neither the Petitioner Companies nor their Counsel has received any objection pursuant to Citations published in the newspapers. ================================================ CO.PET. 226 /2014 5 15. In view of Shareholders Companies; the and approval Creditors accorded of the representation/reports by the Petitioner filed by the Regional Director, Northern Region to the proposed Scheme of Amalgamation, there appears to be no impediment to the grant of sanction to the Scheme of Amalgamation. Consequently, sanction is hereby granted to the Scheme of Amalgamation under sections 391 and 394 of the Companies Act, 1956. The Petitioner Companies will comply with the statutory requirements in accordance with law.
16. Certified copy of the formal order be filed with the Registrar of Companies within 30 days from the date of receipt of the same. In terms of the provisions of sections 391 and 394 of the Companies Act, 1956, all the property, rights and powers of the Transferor Company be transferred to and vest in the Transferee Company without any further act or deed. Similarly, Transferor all the liabilities Company are and duties transferred of to the the Transferee Company without any further act or deed. Upon the Scheme coming into effect, the Transferor Company shall stand dissolved without winding up.
17. It is, however, clarified that this Order will not be construed as an Order granting exemption from ================================================ CO.PET. 226 /2014 6 payment of stamp duty or any other charges, if payable, in accordance with any law; or permission/compliance with any other requirement which may be specifically required under any law.
18. The Learned Counsel for the Petitioner submits that the Petitioner Companies (collectively) wou ld voluntarily deposit a sum of Rs.50,000/- in the Common Pool fund of the Official Liquidator within three weeks from today. The Statement is accepted 19. The Petition is allowed in the above terms. Order Dasti. SANJEEV SACHDEVA, J August 6, 2014 ================================================ CO.PET. 226 /2014 7