Pragati Fabrication Pvt Ltd vs ----
2012 Latest Caselaw 5029 Del

$~18
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


%                         Date of Judgment:27.8.2012


+         COMPANY PETITION No 223 of 2012


      IN THE MATTER OF SCHEME OF AMALGAMATION
      OF THE PETITONER COMPANIES UNDER SECTIONS
      391(2) AND 394 OF THE COMPANIES ACT.

      PRAGATI FABRICATION PVT LTD.
                  .........Petitioner/Transferor Company

                          AND

      SHIVA AUTO CAR (INDIA) PVT. LTD.
                   ........ Petitioner/Transferee Company


                  Through: Mr Sanjay K Maria, Advocate for
                           Petitioner Companies.
                           Mr.K.S.Pradhan, Deputy Registrar
                           of Companies for RD (NR).
                            Mr.Rajeev Bahl, Advocate for Official
                            Liquidator.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR




C.P.No.223/2012                                     Page 1 of 10
       INDERMEET KAUR, J. (Oral)

1. The present joint second motion Petition has been filed

under Sections 391 to 394 of the Companies Act, 1956 (for short

"the Act") for sanction to the Scheme of Amalgamation of

PRAGATI FABRICATION PVT LTD., (hereinafter referred to as

the Transferor Company) with SHIVA AUTO CAR (INDIA)

PVT LTD (hereinafter referred to as the Transferee Company).

2. The registered offices of the Transferor Company and

Transferee Company are situated at New Delhi, within the

jurisdiction of this Court.

3. The Transferor Company was incorporated under the

Companies Act, 1956 on 23 August 1989 with the Registrar of

Companies, NCT of Delhi and Haryana at New Delhi.

4. The Transferee Company was incorporated under the

Companies Act, 1956 on 31 March 2008 with the Registrar of

Companies, NCT of Delhi and Haryana at New Delhi.

5. The Authorized Share Capital of Transferor Company is

Rs.55,00,000/- (Rs. Fifty Five Lakh only) divided into 5,50,000

Equity Shares of Rs. 10/- each. The Issued, Subscribed and Paid-

Up Capital of Transferor Company is Rs. 53,00,000/- (Rs. Fifty

Three Lakh Only) divided into 5,30,000 Equity Shares of Rs. 10/-

each fully paid-up.

6. The Authorized Share Capital of Transferee Company is

Rs.50,00,000/- (Rs. Fifty Lakh only) divided into 5,00,000 Equity

Shares of Rs. 10/- each. The Issued, Subscribed and Paid-Up

Capital of Transferor Company is Rs. 42,00,000/- (Rs. Forty Two

Lakh Only) divided into 4,20,000 Equity Shares of Rs. 10/- each

fully paid-up.

7. The copies of the Memorandum and Articles of Association

of the Transferor Company and Transferee Company have been

filed on record. The Audited Balance Sheet as on 31st March,

2011 of the Transferor Company and Transferee Company, along

with the report of the Auditors, have also been filed.

8. The Transferor Company and Transferee Company are

closely held companies and their shares are not listed on any

Stock Exchange.

9. A copy of the Scheme has been placed on record and the

salient features of the Scheme have been incorporated and

detailed in the Petition. It is claimed by the Petitioner Companies

that the Scheme will result in pooling of their financial,

commercial and other resources, economies of scale and reduction

of overheads. It is further claimed that with enhanced capabilities

and resources at its disposal, the Transferee Company will have

greater flexibility and strength to meet requirements for further

growth of business activities.

10. It is stated that the Transferee Company will issue Two

Hundred Thirty Four (234) Equity Shares of the Transferee

Company of the face value of Rs.10/- each credited as fully paid-

up in the capital of the Transferee Company to the Shareholders

of Transferor Company whose names are recorded in its Register

of Members on a date (Record Date) to be fixed by the Board of

Directors of the Transferee Company for every One Hundred

(100) Equity share of Rs.10/- each held by the said Shareholders

in the Transferor Company.

11. It has been submitted that no proceedings under Sections

235 to 251 of the Act are pending against the Petitioner

Companies.

12. The Board of Directors of the Transferor Company and

Transferee Company in their separate meetings have unanimously

approved the proposed Scheme. Copies of the Resolutions passed

at the meetings of the Board of Directors of the Transferor

Company and Transferee Company have been placed on record.

13. The Petitioner Companies had earlier filed CA (M) No. 76

of 2012 seeking directions of this Court to dispense with the

requirement of convening meetings of the Equity Shareholders

and Secured and Unsecured Creditors of the Petitioner

Companies. Vide order dated 23 April 2012, this Court allowed

the application and dispensed with the requirement of convening

meetings of Shareholders and of the Secured and Unsecured

Creditors of the Petitioner Companies.

14. The Petitioner Companies have thereafter filed the present

joint Petition seeking sanction of the Scheme. Vide order dated 14

May 2012, notice in the Petition was directed to be issued to the

Regional Director, Northern Region and the Official Liquidator.

Citations were also directed to be published in Business Standard

(English, Delhi Edition) and Veer Arjun (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 newspapers. Copies of the newspapers cuttings, in

original, containing the publications have been filed along with

the Affidavit of Service.

15. Pursuant to the notice issued, the Official Liquidator sought

information from the Petitioner Companies. Based on the

information received, the Official Liquidator has filed his report

dated 09.8.2012 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 Company do not appear to have been

conducted in a manner prejudicial to the interest of their

members, creditors or to public interest.

16. In response to the notice issued in the Petition, the Regional

Director, Northern Region, Ministry of Corporate Affairs has

filed his Affidavit dated 25 July 2012. Relying on Clause 7.2 of

Part-III of the Scheme, he has stated that all the employees of the

Transferor Company shall become the employees of the

Transferee Company without any break or interruption in their

services upon sanctioning of the Scheme by the Court. The

Regional Director (NR) has stated in the affidavit that in the

Scheme, there is no mention whether the petitioner companies

have complied with the Accounting Standard-14 issued by the

Institute of Chartered Accounts of India. The petitioner

Companies have in their affidavit dated 09.8.2012 stated that

the Clause 5.1 of the Scheme clearly states about the compliance

of Accounting Standard- 14; this objection is thus baseless. The

Regional Director (NR) has also stated that the memorandum of

association (MOA) of a company can be altered only after

following the procedure prescribed under the provisions of the

Companies Act, 1956 which the petitioner companies have not

specified. The petitioner companies in their affidavit dated

09.8.2012 have undertaken to comply with the procedures

prescribed under the provisions of the Companies Act, 1956.

Accordingly there is no merit in these objections.

17. No objection has been received to the Scheme from any

other party. Mr. Anil Kumar Garg, Director of the Petitioner

Companies has filed an affidavit dated 09.08.2012 confirming

that the Petitioner Companies have not received any objection

pursuant to citations published in the newspapers. Similarly, Mr.

Sanjay Kr Maria, Counsel has also filed an Affidavit dated

09.08.2012 to this effect.

18. Even today, during the course of hearing, Mr. Rajeev Bahl,

learned counsel for Official Liquidator and Mr.K.S.Pradhan,

Deputy Registrar of Companies appearing for Regional Director,

Northern Region state that they have no objection to the present

Scheme being sanctioned.

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

Creditors of the Petitioner Companies; affidavit/report filed by the

Regional Director, Northern Region and the Official Liquidator

attached with this Court to the proposed Scheme, there appears to

be no impediment to the grant of sanction to the Scheme.

Consequently, sanction is hereby granted to the Scheme under

Sections 391 and 394 of the Act. The Petitioner Companies will

comply with the statutory requirements in accordance with law.

20. A certified copy of the Order shall be filed with the

Registrar of Companies, NCT of Delhi and Haryana within 30

days from the date of receipt of certified copy of the same. In

terms of the provisions of Sections 391 and 394 of the Act, all the

properties, 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.

21. Mr. Sanjay Kr Maria, learned counsel states that the

Petitioner Companies would voluntarily deposit a sum of Rs.

1,00,000/- with the Common Pool fund of the Official Liquidator

within three weeks from today. The said statement is accepted.

22. The petition is allowed in the above terms.

Order Dasti.

INDERMEET KAUR, J AUGUST 27, 2012 nandan