Delhi High Court
Doosan Babcock Engineering & ... vs Doosan Projects India P Ltd on 20 December, 2010
Author: Sanjiv Khanna
17.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ COMPANY PETITION NO. 404/2010
% Date of decision: 20th December, 2010
DOOSAN BABCOCK ENGINEERING AND SERVICES INDIA
PRIVATE LIMITED ..... Petitioner/Transferor Company No. 1.
DOOSAN BABCOCK ENERGY INDIA PRIVATE LIMITED
..... Petitioner/Transferor Company No. 2.
AND
DOOSAN PROJECTS INDIA PRIVATE LIMITED
..... Petitioner/Transferee Company.
Through Mr. Rishi Agrawal & Mr. Rajiv
Kumar, Advocates for the petitioner
companies.
Astt. ROC in person for RD.
Mr. Rajiv Behl, Advocate for the Official
Liquidator.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
O R D E R (ORAL)
1. This second motion petition under Sections 391-394 of the
Companies Act, 1956 (Act, for short) has been filed by Doosan Babcock
Engineering and Services India Private Limited and Doosan Babcock
Energy India Private Limited (hereinafter referred to as the transferor
company Nos. 1 and 2 respectively) and Doosan Projects India private
Limited (hereinafter referred to as the transferee company) in respect of
scheme of amalgamation, which has been enclosed as Annexure-A to
this petition.
2. The registered office of the transferor company Nos. 1 and 2 and
the transferee company are located in Delhi. The transferor company
COMPANY PETITON NO. 404/2010 Page 1
Nos. 1 and 2 and the transferee company had earlier filed Company
Application (Main) No. 175/2010, which was disposed of vide order
dated 28th September, 2010. By this order the Court was pleased to
dispense with the meeting of the shareholders and unsecured creditors of
the transferor company Nos. 1 and 2 and the transferee company. The
transferor company Nos. 1 and 2 and the transferee company do not have
any secured creditor. Meeting of the preference shareholders of the
transferor company No. 1 was also dispensed with. It is stated in the
petition that there has been no material change in the creditors and
shareholding pattern of the transferor company Nos. 1 and 2 and the
transferee company. The transferor company Nos. 1 and 2 and the
transferee company are group companies.
3. After filing of the present petition, notices were issued to the
Official Liquidator and the Regional Director (Northern Region). Notice
of hearing of petition was also advertised in the newspapers 'The
Statesman' (English) and 'Jansatta' (Hindi). The petitioners have placed
on record newspaper cuttings of publication of the notices. Affidavit has
been filed stating that the petitioners or their counsel have not received
any complaint or objection against the proposed scheme of
amalgamation.
4. The Official Liquidator in his report has stated that he has not
received any complaint against the proposed scheme of amalgamation
from any person/party interested in the scheme in any manner till the
date of filing of this report. The Official Liquidator has further stated
that on the basis of information submitted by the petitioner companies,
he is of the view that the affairs of the transferor company Nos. 1 and 2
do not appear to have been conducted in a manner prejudicial to the
interest of its members or public interest.
5. The Regional Director (Northern Region) in his report has stated
COMPANY PETITON NO. 404/2010 Page 2
that all employees of the transferor company Nos. 1 and 2 shall become
employees of the transferee company without any break or interruption
in their services upon sanction of the scheme.
6. The Regional Director (Northern Region) has, however, raised an
objection stating that the scheme in paragraph 17.1 of Part-IV envisages
amendment in the Memorandum of Association of the transferee
company. It is submitted that this automatic amendment is not permitted
and Memorandum of Association of the transferee company can be
changed/altered after following the prescribed procedure under the Act.
7. The aforesaid objection raised by the Regional Director (Northern
Region) has no merit and is squarely covered by the decision of this
Court in Company Petition No. 444/2009, In Re Techpro Ashtech
Limited and other Companies decided on 4th March, 2010. In the said
decision, leaned single Judge of this Court has relied upon decision of
the Bombay High Court in PMP Auto Industries Limited (1994) Vol. 80
Company Cases 289 (Bombay). In the said case it has been held that
Section 391 of the Act is a complete code and is in nature of a Single
Window Clearance System, which ensures that the parties are not put to
avoidable, unnecessary and cumbersome procedure. It is noticed that the
nature of amendment prayed for and mentioned in the scheme will result
in incorporation of the business activities, which were earlier being
undertaken by the transferor company Nos. 1 and 2, which upon merger
will be now undertaken by the transferee company. All shareholders of
the transferor company Nos. 1 and 2 and the transferee company have
already approved the scheme. In view of the said decisions, the
objection raised by the Regional Director (Northern Region) is
overruled.
8. The present petition is allowed and the scheme of amalgamation is
approved/sanctioned. This order will not be construed as an order
COMPANY PETITON NO. 404/2010 Page 3
granting exemption from payment of stamp duty, if payable.
The petition is disposed of.
DASTI.
SANJIV KHANNA, J.
DECEMBER 20, 2010
VKR
COMPANY PETITON NO. 404/2010 Page 4
