Delhi High Court
Ten Pebbles Management Private ... vs ........................... on 14 December, 2012
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:14.12.2012
+ CO.PET. 411/2012
In the matter of
The Companies Act, 1956
And
Petition under Sections 391(2) & 394 of the Companies Act, 1956
Scheme of Amalgamation of
TEN PEBBLES MANAGEMENT PRIVATE LIMITED
.......... Transferor Company
AND
ANYTIME LEARING PRIVATE LIMITED
.......................... Transferee Company
Through Mr. Mukesh Sukhija, Advocate
for the Petitioners
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1 This joint Petition has been filed under sections 391(2) & 394 of
the Companies Act, 1956 by the Petitioner Transferor Company and
Transferee Company seeking sanction of the Scheme of Amalgamation
of M/s TEN PEBBLES MANAGEMENT PRIVATE LIMITED
(Transferor Company) with ANYTIME LEARING PRIVATE
LIMITED (Transferee Company).
2 The registered offices of the Petitioner Transferor Company and
Transferee Company are situated at New Delhi, within the jurisdiction
of this Court.
3 Details with regard to the date of incorporation of Transferor and
Transferee Company, 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 Accounts as at 31st March, 2012 of the Petitioner
Transferor and 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 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 Share Exchange ratio is concerned, the Scheme
provides that upon amalgamation of the 'Transferor Company' with the
'Transferee Company' pursuant to the Scheme of Amalgamation, the
following would be the share Exchange Ratio:
1 (One) Equity Shares of Re.1/- (Rupee One ) each of the
Transferee Company for every 1 (One) Equity Shares of
Re.1/- (Rupee One ) each held in the Transferor Company-
TEN PEBBLES MANAGEMENT PRIVATE LIMITED.
8 The Petitioner Company had earlier filed CA (M) No. 131
seeking directions of this Court for dispensation/convening of meetings.
Vide order dated August 24, 2012, this Court allowed the Application
and dispensed with the requirement of convening meetings of
Shareholders, in view of the written consents/NOC given by all the
Shareholders of the Transferor Company and the Transferee Company
are dispensed with. In view of the payments made to the all the un-
secured creditors of the Transferee Company and 1 out of 2 un-secured
creditors of the Transferor Company before making the present
application & written consents/ NOC given by another un-secured
creditor of the Transferor Company, the requirement of convening
meeting of the un-secured creditors of the Transferor Company and the
Transferee Company was dispensed with. Further, there were no secured
creditors in the Transferor Company and the Transferee Company
accordingly there was no requirement of convening the meetings of the
secured creditor in the Transferor Company and the Transferee
Company.
9 The Petitioner Transferor Company and the Transferee Company
have thereafter filed the present Petition seeking sanction of the Scheme
of Amalgamation. Vide order dated September 04, 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 the 'Business Standard' (English, Delhi Edition) and
'Business Standard' (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 on October 13, 2012. Copies of the
newspaper cuttings, in original, containing the publications have been
filed along with the Affidavit of Service.
10 Pursuant to the notices issued, the Official Liquidator sought
information from the Petitioner Company. Based on the information
received, the Official Liquidator has filed his report dated December 11,
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 its members, creditors or to public interest.
11 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 December 12, 2012.
Relying on Clause 8 of the Scheme of Amalgamation, he has stated that,
upon sanction of the Scheme of Amalgamation, 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 of Amalgamation by the Hon'ble. Further the
Ld. Regional Director had made some observations, regarding allotment
of shares made to some Non Resident India's by the Transferor
Company.
12 That with regard to the above observations, Mr. Rajul Garg,
Director of the Petitioner Transferor Company and the Petitioner
Transferee Company filed his affidavit dated 13th December 2012,
giving his following reply to the observations raised by the Ld. Regional
Director:
(i) That the Transferor Company had received three foreign inward
remittances amounting to Rs.27,92,022/- as advance towards
share subscription money from three Non Resident Indians,
however, the inward remittances for the same were reported to
New Delhi Regional Office of Reserve Bank of India beyond the
prescribed time.
(ii) That the Transferor Company had made allotment of 5129 shares
to the Non Resident India on 25th March 2010 and the same was
reported to New Delhi Regional Office of Reserve Bank of India
beyond the prescribed time.
(iii) That the Transferor Company had made the application for
compounding of the contravention of the abovementioned
provisions of Foreign Exchange Management Act. And the
Compounding Authority of the Reserve Bank of India was pleased
to compound the abovementioned contraventions in accordance
with the Foreign Exchange (Compounding Proceeding) Rules
2000.
13 No objection has been received to the Scheme of
Amalgamation from any other party by either of the Petitioner Company
or the counsel. Mr. Rajul Garg, the Director of the respective petitioner
companies had given his affidavit dated December 10, 2012 confirming
that neither the Petitioner Company nor the 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 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 Company will comply with the
statutory requirements in accordance with law. Certified copy of the
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, and in terms of the Scheme, the
whole or part of the undertaking, 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, in terms of the
Scheme, 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 taxes 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.
15 Learned Counsel for the Petitioners states that the Petitioner
Company would voluntarily deposit a sum of Rs. One 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.
17 Order dasti.
INDERMEET KAUR, J
DECEMBER 14, 2012
A
