Satkar Fin Cap Ltd vs ----
2012 Latest Caselaw 4836 Del

$~17
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Date of Judgment:17.8.2012

+            COMPANY PETITION NO. 256 OF 2012


SATKAR FIN CAP LTD
                                    Petitioner/Transferor Company No. 1

SM ENTREPRENEUR INDIA PVT LTD
                        Petitioner/Transferor Company No. 2

SMART TRADELINE PVT LTD
                                    Petitioner/Transferor Company No. 3

                                And

PRIDE RESIDENCY PVT LTD
                                   Petitioner/Transferee Company

                   Through:     Mr.Rajeev K Goel, Advocate for the
                                Petitioners.
                                Mr.K.S.Pradhan, Deputy Registrar of
                                Companies on behalf of the Regional
                                Director (NR)

                                Mr.Rajiv Bahl, Advocate          for     the
                                Official Liquidator

INDERMEET KAUR, J. (Oral)

1. This joint Petition has been filed under sections 391 & 394 of the

Companies Act, 1956 by the Petitioner Companies seeking sanction to

the Scheme of Amalgamation of Satkar Fin Cap Ltd., SM Entrepreneur

India Pvt. Ltd. and Smart Tradeline Pvt. Ltd. with Pride Residency Pvt.

Ltd. The registered offices of All the Petitioner Companies are situated

at New Delhi, within the jurisdiction of this Court.

2. It has been submitted that no proceedings under sections 235 to

251 of the Companies Act, 1956 is pending against the Petitioner

Companies.

3. The Petitioner Companies had earlier filed CA (M) 82 of 2012

seeking directions of this Court for dispensation/convening of meetings.

Vide order dated 7th May, 2012, this Court allowed the Application and

dispensed with the requirement of convening all the meetings of

Shareholders and Creditors of the Applicant Transferor Companies and

Transferee Company.

4. The Petitioner Companies had thereafter filed the present

Petition seeking sanction to the Scheme of Amalgamation. Vide order

dated 23rd May, 2012, notice of the Petition was directed to be issued to

the Regional Director, Northern Region and the Official Liquidator

attached with this Court. Citations were also directed to be published in

'Financial Express' (English, Delhi Edition) and 'Navbharat Times'

(Hindi, Delhi Edition). Affidavit of Service and Publication has been

filed 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

newspaper. Copies of the newspaper cuttings, in original, containing the

publications have also been filed along with the Affidavit of Service.

5. Pursuant to the notice issued, the Learned Official Liquidator

sought information from the Petitioner Companies. Based on the

information received, the Learned Official Liquidator has filed his report

dated 13th August, 2012, 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 a 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.

6. In response to the notice issued in the Petition, Mr. Rakesh

Chandra, Learned Regional Director, Northern Region, Ministry of

Corporate Affairs has filed his Affidavit/Report dated 14th August, 2012.

Relying on the Scheme of Amalgamation, he has stated that, upon

sanction of the Scheme, all the employees of the Transferor Companies

shall become the employees of the Transferee Company without any

break or interruption in their services upon sanctioning of the Scheme

by the Hon'ble Court.

7. Learned Regional Director drew the attention of this court with

regard to the Appointed Date of the Scheme of Amalgamation which is

prior to the date of incorporation of the Transferee Company.

8. In response to the aforesaid observation of the Learned RD, the

Petitioners have filed a Reply/Affidavit dated 16th August, 2012 of Mr.

Arun Arora, Director of the Petitioner Transferee Company. The

Petitioners submitted that the every Scheme of Amalgamation, if

approved by the Hon'ble High Court, becomes effective only when the

copy of High Court order is filed with the concerned Registrar of

Companies and the Appointed Date can be fixed retrospectively or

prospectively. It is further submitted that the Appointed Date is used to

reflect the date on which the assets and liabilities of the existing

company are to be identified for the purposes of transfer to the

Transferee Company and the fact that the appointed date is falling prior

to the incorporation of the Transferee Company is not material because

the transfer has to take place only on the Effective Date of the Scheme

and the Transferee Company must be in existence on the Effective Date.

9. In support of his submission, learned Counsel for the Petitioners

has placed reliance on the judgment of this court in re: HCL Ltd., Re

(1994) 80 Com Cases 228 (Del) wherein, while considering a similar

objection, the court has held as under:-

".......Where in a scheme of arrangement the expression "appointed date" was used to reflect the date on which the assets and liabilities of the existing company were to be identified for the purposes of transfer to the newly created company, the fact that the "appointed date" was falling prior to the incorporation of the transferee company was not material because the transfer was to take place on the effective date of the scheme.

10. The aforesaid views were taken by this Court in other similar

matters. Learned Counsel for the Petitioners has drawn my attention to

the orders passed by this Court in CP 310 of 2009 and CP 141 of 2009

where the similar objections raised by the learned RD were rejected by

this Court.

11. Having regard to the submissions made at the Bar and settled

law on the subject, it is clear that the date of incorporation of the

Transferee Company should correspond with effective date of the

scheme, i.e., the date on which the actual transfer takes place and not

with the appointed date. In view thereof, the objection raised by the

Regional Director is overruled.

12. No objection has been received to the Scheme of Amalgamation

from any other party. Mr. Arun Arora, Director of the Transferee

Company has filed an affidavit confirming that neither the Petitioner

Companies nor their Counsel has received any objection pursuant to

citations published in the newspapers.

13. 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. 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,

all the liabilities and duties of the Transferor Company be transferred to

the Transferee Company without any further act or deed. Upon the

Scheme coming into effect, the Transferor Company shall stand

dissolved without winding up. 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.

14. The Petitioner Companies would voluntarily deposit a sum of

Rs.1,00,000/- in the Common Pool fund of the Official Liquidator

within three weeks from today.

15. The Petition is allowed in the above terms.

Order Dasti.

INDERMEET KAUR, J.

AUGUST 17, 2012/nandan