Delhi High Court
M/S. Shree Khemi Shakti Leasing & ... vs -- on 17 January, 2011
Author: Manmohan
8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 114/2010
IN THE MATTER OF:
M/S. SHREE KHEMI SHAKTI LEASING
& PROPERTIES PRIVATE LIMITED & ORS.
Through: Mr. Ashish Aggarwal, Advocate for
the petitioner.
Mr. K.S. Pradhan, Deputy ROC for
Regional Director.
Ms. Manisha Tyagi, Advocate for
Official Liquidator.
% Reserved on: 04th January, 2011
Date of Decision: 17th January, 2011
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
1. Whether the Reporters of local papers may be allowed to see the judgment? No.
2. To be referred to the Reporter or not? No.
3. Whether the judgment should be reported in the Digest? No.
JUDGMENT
MANMOHAN, J
1. This is a second motion petition under Sections 391 and 394 of
the Companies Act, 1956 (for short "the Act") for sanction/approval of
a Scheme of Amalgamation amongst M/s. Shree Khemi Shakti Leasing
& Properties Pvt. Ltd. (Transferor Company no. 1), M/s. A.J.D. Leasing
& Finance Ltd. (Transferor Company no. 2), M/s. P.S.P. Capital
Services Pvt. Ltd. (Transferor Company no. 3), M/s. Shri Ram Sevak
Fincap Pvt. Ltd. (Transferor Company no. 4), M/s. Exabroad Finance
Pvt. Ltd. (Transferor Company no. 5), M/s. Shri Ram Sevak Finvest
Pvt. Ltd. (Transferor Company no. 6), M/s. Newage Shares and Stock
Brokers Pvt. Ltd. (Transferor Company no. 7), M/s. S.R.G. Human
Resources Development Ltd. (Transferor Company no. 8), M/s. Pruday
Investments Pvt. Ltd. (Transferor Company no. 9), M/s. Shri Deoraha
Finvest Pvt. Ltd. (Transferor Company no. 10), M/s. Aggarwal Fincap
Pvt. Ltd. (Transferor Company no. 11), M/s. Shalani Dhoop Pvt. Ltd.
(Transferor Company no. 12), M/s. Yeomans Printpack Pvt. Ltd.
(Transferor Company no. 13), M/s. Duggal Contractors and Traders
Pvt. Ltd. (Transferor Company no. 14), M/s. Shri Deoraha Finlease Pvt.
Ltd. (Transferor Company no. 15), M/s. First India Capital Services
Ltd. (Transferor Company no. 16), M/s. Ravico (India) Ltd. (Transferor
Company no. 17), M/s. Romano Investments Pvt. Ltd. (Transferor
Company no. 18), M/s. Neat Developers Ltd. (Transferor Company no.
19), M/s. Infopark (India) Ltd. (Transferor Company no. 20), M/s.
GNG Travels Pvt. Ltd. (Transferor Company no. 21) and M/s. BSSR
Impex Pvt. Ltd. (Transferor Company no. 22) with M/s. Vizwise
Commerce Pvt. Ltd. (Transferee company).
2. The details of twenty two transferor companies as well as
transferee company including their date of incorporation, registered
office, their authorised, issued, subscribed and paid up capital have
been mentioned in the petition. Copies of the Memorandum of
Association and Articles of Association as well as audited annual
accounts of all the Transferor Companies and Transferee Company
have been placed on record. The Scheme has been annexed as
„Annexure A‟.
3. This Court vide order dated 4th March, 2010 passed in CO.
APPL. (M) NO. 183 of 2009, dispensed with the requirement of
convening meetings of the shareholders and the creditors of all the
petitioner companies as all the shareholders and the creditors had given
their consent to the proposed Scheme of Amalgamation.
4. After filing of the present petition, notices were issued to the
Regional Director (Northern Region) of Ministry of Corporate Affairs
and the Official Liquidator. Notices were also directed to be published
in newspapers, namely, "The Statesman" (English) and "Veer Arjun"
(Hindi). The petitioners have filed clippings of the notices published in
the said newspapers.
5. The Regional Director (Northern Region) in his affidavit has
admitted that in the Scheme of Amalgamation, all employees of the
transferor companies shall become employees of the transferee
company without any break or interruption in their services upon
sanctioning of the Scheme of Amalgamation by this Court. However,
the Regional Director has pointed out that two complaints under
Sections 17 and 224(8) of the Act are pending in the Court of ACMM,
Tis Hazari, Delhi.
6. In response, Mr. Ashish Aggarwal, learned counsel for the
petitioners has stated that the transferor company No.14 has filed a
compounding application before the Company Law Board in respect of
the aforesaid two cases. He has further pointed out that as per Clause
12 of the Scheme of Amalgamation under the heading „Legal
Proceedings‟, it has been clearly stipulated that all legal proceedings as
against the transferor companies shall be proceeded with against the
transferee company. Since lot of emphasis was laid upon Clause 12 of
the Scheme of Amalgamation, the same is reproduced hereinbelow:-
"12. LEGAL PROCEEDINGS:
All legal proceedings including any suit, writ petition,
appeal, revision or other proceedings of whatever nature
(hereinafter called "the Proceedings") by or against any
of the Transferor Company be pending, the same shall
not abate or be discontinued or be in any way
prejudicially affected by reason of the transfer of the
Undertakings of the Transferor Companies or of
anything contained in the Scheme, but the Proceedings
may be continued, prosecuted and enforced by or against
the Transferee Company in the same manner and to the
same extent as it would or might have been continued,
prosecuted and enforced by or against the Transferor
Companies as if the Scheme had not been made. On and
from the Effective Date/Transfer Date, the Transferee
Company shall and may initiate any legal proceeding for
and on behalf of the Transferor Companies."
7. During the course of hearing, this Court had clarified that even if
the present Scheme of Amalgamation is approved/sanctioned, the two
complaints against the transferor company No.14 as well as its
Directors and the compounding application would not stand abated but
would continue against the transferee company and the erstwhile
Directors of the transferor companies. Mr. Ashish Aggarwal, learned
counsel for petitioners stated that the petitioners would be bound by the
present clarification. Even Mr. K.S. Pradhan, Deputy Registrar of
Companies appearing for the Regional Director (Northern Region) was
satisfied and did not press his objection to the Scheme of
Amalgamation.
8. Ms. Manisha Tyagi, learned counsel for the Official Liquidator
stated that no complaint had been received against the proposed
Scheme of Amalgamation by any person/party interested in the scheme.
She further stated that according to the Official Liquidator, the affairs
of the transferor and transferee companies did not appear to have been
conducted in the manner prejudicial to the interest of its members or
public interest. Accordingly, she stated that the Official Liquidator
had no objection to the proposed Scheme of Amalgamation.
9. Having heard the learned counsel for the parties, I hereby
sanction the Scheme of Amalgamation set forth in Annexure A hereto
and declare the same to be binding on all the shareholders & creditors
of the petitioner companies and all concerned and approve the said
Scheme of Amalgamation with effect from the Appointed Date.
10. Consequently, sanction is hereby granted to the Scheme of
Amalgamation under Sections 391 and 394 of the Act. The petitioners
will comply with the statutory requirements in accordance with law. It
is clarified that this order will not be construed as an order granting
exemption from payment of stamp duty or tax, if payable. The petition
is allowed in above terms.
MANMOHAN, J
JANUARY 17, 2011
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