Nsl Renewabled Power (P) Ltd vs ----
2012 Latest Caselaw 4944 Del

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

%                           Date of Judgment:         23rd August, 2012

+      Co. Pet. 207/2012

       IN THE MATTER OF
       NSL RENEWABLED POWER (P) LTD.           .... Petitioner
                    Through Mr. Bhagvan Swarup Shukla and
                            Mr.Rajeev Kumar, Adv.
                            Mr. K. S. Pradhan, Dy. Registrar
                            (NR), Registrar of Companies.

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1. This petition has been filed under Sections 391 to 394 of the

Companies Act, 1956 by NSL Renewable Power Private Limited

(hereinafter referred to as Petitioner/Transferee Company) seeking

sanction of the Scheme of Amalgamation of Perpetual Energy Systems

Limited (hereinafter referred to as Transferor Company I) and Indur

Green Power Private Limited with NSL Renewal Power Private Limited

(hereinafter referred to as Transferor Company II).

2. The registered office of the Petitioner/Transferee Company is

situated at New Delhi, within the jurisdiction of this Court. Registered

office of the Transferor Company I and Transferor Company II are

situated at Hyderabad, outside jurisdiction of this Court.

3. Details with regard to the date of incorporation of Transferor and

Transferee Companies, their authorized, issued, subscribed and paid up

capital have been given in the Petition.

4. Copies of the Memorandum and Articles of Association as well as

the latest audited Annual Accounts for the year ended 31st March, 2011

of the Petitioner Transferee Company have also been enclosed with the

petition.

5. Copies of the Resolutions passed by the Board of Directors of the

Petitioner Company approving in the Scheme of Amalgamation have

also been placed on record.

6. It has been submitted that no proceedings under Sections 235 to

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

Company.

7. So far as the share exchange ratio for amalgamation is concerned,

the Scheme provides that, upon the Scheme finally coming into effect,

the Transferee Company shall issue shares in the following manner:

 1 (one) fully paid up Equity Share of Rs. 10 (Rupees Ten) each,

of the Transferee Company for every 6 (six) fully paid up Equity

Share of Rs. 10 (Rupees Ten) each held by the equity

shareholders in Transferor Company I.

 1 (one) fully paid up Equity Share of Rs. 10 (Rupees Ten) each,

of the Transferee Company for every 5 (five) fully paid up Equity

Share of Rs. 10 (Rupees Ten) each held by the equity

shareholders in Transferor Company II.

8. The Petitioner Company had earlier filed CA (M) No. 46 of 2012

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

Vide Order dated 14th March, 2012, this Court allowed the Application

and dispensed with the requirement of convening meeting of Equity

Shareholders of the Transferee Company and directed to convene the

meetings of Secured and Unsecured Creditors of the Transferee

Company. From the reports of the Chairpersons at the aforesaid

meeting, it is apparent that Scheme was approved unanimously by the

Secured and Unsecured Creditors participated in the meetings.

9. The Petitioner Transferee Company has thereafter filed the

present petition seeking sanction of the Scheme of Amalgamation. Vide

Order dated 8th May, 2012, notice in the petition was directed to be

issued to the Regional Director, Northern Region.

Citations were also directed to be published in 'Indian Express'

(English, Edition) and 'Jansatta' (Hindi, Delhi). Affidavit of Service and

Publication has been filed by the Petitioner showing compliance

regarding service of the petition on the Regional Director, Northern

Region, and also regarding publication of citations in the aforesaid

newspaper on 25th July, 2012. Copies of the newspaper cuttings, in

original, containing the publications have been filed along with the

Affidavit of Service.

10. In response to the notices issued in the petition, Mr. Rakesh

Chandra, learned Regional Director, Northern Region, Ministry of

Corporate Affairs has filed his Affidavit dated 30 th July, 2012. Relying

on Clause 9.1 of Part B of the Scheme of Amalgamation, he has stated

that, upon sanction of the Scheme of Amalgamation, all the

staff/employees of both the Transferor Companies shall become the

employees of the Transferee Company without any break or interruption

in their services upon sanctioning of the Scheme of Amalgamation by

the Hon'ble Court.

11. The Regional Director has further submitted that there is no

mention whether the Petitioner Company has complied with the

Accounting Standard -14 issued by the Institute of Chartered

Accountant of India.

12. In response to the above objection, the Petitioner has filed an

affidavit of Mr. N.M. Vaidyanathan, authorized signatory of the

Petitioner Company dated 6th August, 2012, wherein the Petitioner has

given an undertaking to comply with the Accounting Standard-14 issued

by the Institute of Chartered Accountant of India upon approval of the

Scheme. The undertaking is accepted and the petitioner shall remain

bound by the same. In view thereof, the objection raised by the Regional

Director does not survive.

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

from any other party. Mr. N.M. Vaidyanathan, Authorized Signatory of

the Transferee Company, has filed an affidavit dated 18 th August 2012

confirming that neither the Petitioner Company nor their Legal Counsel

has received any objection pursuant to citations published in the

newspapers.

14. In view of the approval accorded by the Shareholders and

Creditors of the Petitioner Company; representation/reports filed by the

Regional Director, Northern Region, 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

Company will comply with the statutory requirements in accordance

with law. Certified copy of the Order be filed with the Registrar of

Companies within 30days from the date of receipt of the same. In terms

of the provisions of Sections 391 and 394 of the Companies Act, 1956,

and in terms of the Scheme, the whole or part of the undertaking, 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, in terms of the Scheme, all the liabilities and duties of the

Transferor Companies be transferred to the Transferee Company

without any further act or deed. It is, however, clarified that this order

will not be construed as an order granting exemption from payment of

stamp duty or taxes or any other charges, if payable in accordance with

any law; or permission/compliance with any other department which

may be specifically required under any law.

Further since the jurisdiction of the Transferor Companies is

before the High Court of Hyderabad and the said Transferor Companies

have already moved a petition over there, this order is subject to the

sanction of the Scheme by the High Court of Hyderabad.

15. Learned Counsel for the Petitioner states that the Petitioner

Company would voluntarily deposit a sum of Rs. 1 lac in the Common

Pool Fund of the Official Liquidator within three weeks from today. The

statement is accepted.

16. The Petition is allowed in the above terms.

Order dasti.

INDERMEET KAUR, J AUGUST 23, 2012 rb