$~66
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 644/2013
IN THE MATTER OF
ANKIT INFOWED PVT LTD & ORS. .... Petitioner
Through: Mr Rajeev K Goel,
Advocate for the Petitioners, Mr.
Atma Sah, Assistant Registrar of
Companies for the Regional Director
Mr.S.B Gautam, official Liquidator.
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 26.05.2014
SANJEEV SACHDEVA, J (ORAL)
1. This second motion joint Petition has been filed under sections 391to 394 of the Companies Act, 1956 ("ACT") seeking sanction to the Scheme of Amalgamation of Ankit Infoweb Pvt Ltd, Keshav Consultancy Services Pvt Ltd (Transferor Company No.1), Nirvana Lifestyle Pvt Ltd ((Transferor Company No.2), ATJ Impex Pvt Ltd (Transferor Company No.3), Home Coziness Resorts & Holidays Pvt Ltd ((Transferor Company No.4), Ebonics Consultancy Services Pvt Ltd ================================================== CO.PET. 644/2013 1 (Transferor Company No.5), A R Propmart Pvt Ltd(Transferor Company No.6), A R Overseas Links Pvt Ltd (Transferor Company No.7), Inventive Bio Energy Services Pvt. Ltd (Transferor Company No.8) and Hermes Educations Solutions Pvt Ltd (Transferor Company No.9)with TTJ Impex Pvt Ltd (Transferee company) (Collectively referred as the Petitioner Companies). A copy of the Scheme has been enclosed with the petition.
2. The registered offices of all 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 Boards of Directors of the Petitioner Companies approving the scheme have also been filed along with the petition.
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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.
7. The Petitioner Companies had earlier filed CA (M) 156 of 2013 seeking directions of this Court for dispensation/convening of meetings. Vide order dated 19th November, 2013, this Court allowed the Application and requirement of convening all the meetings of Shareholders and Un-secured Creditors of the Transferor Companies and the Transferee Company were dispensed with. None of the Applicant Companies had any Secured Creditors.
8. The Petitioner Companies had thereafter filed the present Petition seeking sanction to the Scheme of Amalgamation. Vide order dated 10th December, 2013, notice of the Petition was directed to be issued to the Regional Director, Northern Region, Ministry of Corporate Affairs, Noida and the Official Liquidator attached with this Court. Citations were also directed to be published in „Business Standard‟ (English, Delhi Edition) and „Dainik Bhaskar‟ (Hindi, Delhi Edition). Affidavit of Service and Publication has been filed by the Petitioners showing compliance regarding service of the Petition on the ================================================== CO.PET. 644/2013 3 Regional Director, Northern Region and the Official Liquidator, and also regarding publication of citations in the aforesaid newspaper. Copies of the newspaper cuttings, in original, containing the publications have also been filed along with the Affidavit of Service.
9. Pursuant to the response to notice issued, the Official Liquidator sought information from the Petitioner Companies. Based on the information received, learned Official Liquidator has filed his report dated 15th April, 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 Companies, which is subject matter of dissolution, do not appear to have been conducted in a manner prejudicial to the interest of its members, creditors or to public interest as per the 2nd Proviso of section 394 (1) of the Act.
10. In response to the notice issued in the Petition, learned Regional Director, Northern Region, Ministry of Corporate Affairs has filed his Affidavit/Report dated 22nd May, 2014. Relying on the Scheme of Amalgamation, he has stated that, upon sanction of the Scheme, all the employees of the Transferor Companies ================================================== CO.PET. 644/2013 4 shall become the employees of the Transferee Company without any break or interruption in their services.
11. The Learned Regional Director has stated that the Registrar of Companies, Delhi has reported that all the Transferor and Transferee Companies are closely held companies. The entire funds collected by these companies in previous years by way of issue of equity shares having voting /non voting rights and debentures to certain private limited companies have been parked as investment and granting loans and advances. The shares of these companies have changed hand from time to time. None of the transferor and transferee Companies are doing any significant business activity and reported nominal income except in the financial year ended 31.03.2013. Therefore, it appears that the proposed scheme of amalgamation is consolidation of such funds collected and invested in past into Transferee Company, however there is no mention as to whether these companies are registered with Reserve Bank of India as NBFC, if so, these Companies have obtained no objection from the RBI with regard to the proposed Scheme of Amalgamation. Despite notice, no comments have been received from the Income Tax Authorities.
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12. Mr Rajeev Goel, Learned Counsel for the Petitioner Companies, submitted that none of the Transferor and Transferee Companies are required to be registered with the RBI as a non banking finance company. Hence, question of obtaining „No Objection‟ from the RBI for the proposed Scheme of Amalgamation does not arise. He further clarified that even for a company registered with the RBI as a NBFC, obtaining „No Objection‟ from the RBI for the proposed Scheme of Amalgamation is not required. In terms of the RBI Circular DNBS (PD) C.C. No. 63/02.02/2005-06 dated 24th January, 2006, where merger and amalgamation takes place in terms of the High Court order in pursuance of section 391 and 394 of the Companies Act, 1956, the NBFC is required to inform the RBI about merger or amalgamation along with Court‟s order approving the same within a period of one month from the date of the order. Learned Counsel for the Petitioner Companies, on instructions, undertook that the Petitioners and their Directors would be bound for any action which may be taken by the RBI in future for any act of commission or omission by the Petitioner Companies with regard to NBFC regulations.
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13. It is directed that in case it is found that the transferor company has violated any provision of the Reserve Bank of India Act then the Directors of the Transferor Company guilty of breaching the applicable provisions of the Reserve Bank of India Act shall continue to be liable irrespective of the sanction of the Scheme.
14. No issue with regard to the above issuance of shares on premium or transfer of funds by way of investment or granting of loan or advance is raised by the Income Tax Authorities. The Income Tax Authorities has further not raised any issue with regard to the share application money pending in the petitioner company. It is directed that the Income Tax Authorities shall be permitted to proceed against the Transferee Company in respect of any liability that may arise on account of sanction of the Scheme.
15. In view of the aforesaid clarification and undertaking given by the Petitioners, the concern of the Regional Director has been duly addressed.
16. No objection has been received to the Scheme of Amalgamation from any other party. Mr Vinay Gupta, Director of the Transferee Company has filed an affidavit confirming that ================================================== CO.PET. 644/2013 7 neither the Petitioner Companies nor their Counsel has received any objection pursuant to citations published in the newspapers.
17. In view of the approval accorded by the Shareholders and Creditors of the Petitioner Companies; representation/reports filed by the Regional Director, Northern Region and the Official Liquidator, attached with this Court 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.
18. 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 Companies be transferred to and vest in the Transferee Company without any further act or deed. Similarly, all the liabilities and duties of the Transferor Companies be transferred to the Transferee Company without any further act ================================================== CO.PET. 644/2013 8 or deed. Upon the Scheme coming into effect, the Transferor Companies shall stand dissolved without winding up.
19. It is, however, clarified that this order will not be construed as an order granting exemption from 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.
20. The Petitioner Companies (collectively) would voluntarily deposit a sum of Rs.1,00,000/- in the Common Pool fund of the Official Liquidator within three weeks from today. The statement is accepted.
21. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J MAY 26, 2014 HJ ================================================== CO.PET. 644/2013 9 1