Receivable Management Services ... vs .....................
2012 Latest Caselaw 7177 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Date of Judgment:14.12.2012

+      CO.PET. 424/2012

Receivable Management Services India Pvt. Ltd.
                                 .........TRANSFEROR COMPANY
                              AND
Iqor India Services Pvt. Ltd.
                                 .........TRANSFEREE COMPANY

(Collectively the Transferor Company &
the Transferee Company as)                         ........PETITIONERS

                          Through     Mr. Vikas Goel, Adv.

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1. This Second motion joint petition has been filed under

Sections391 to 394 of the Companies Act, 1956 ( hereinafter

referred to as „Act) by the Petitioner Companies seeking sanction

of the Scheme of Amalgamation (hereinafter referred to as

"Scheme).

2. The Petitioner companies had earlier filed C.A. (M) No. 138

of2012 seeking directions of this Court for (a) dispensation of the

meetings of Equity Shareholders and unsecured creditors of both

the Petitioner Companies. Vide Order dated 29.08.2012, this court

allowed the application and was pleased to direct dispensing with

convening the meetings of the equity shareholders and Unsecured

Creditors of the Petitioner Companies.

3. The Petitioner Companies have thereafter filed the present

petition seeking sanction of the Scheme of Amalgamation. Vide

orderdated 12.09.2012, notice in the Petition was directed to be

issued to the Regional Director, Northern Region, the Citations

were also directed to be published in "Times of India" (English,

Delhi Edition) and "Danik Jagran" (Hindi, Delhi Edition).

Affidavit of service dated 06.12.2012 alongwith copies of

publications in both the newspapers have been filed by the

Petitioners showing compliance regarding service of the petition

on the Regional Director, Northern Region and also regarding

Publication of Citations in the aforesaid Newspapers on

19.11.2012 and 24.11.2012 respectively, copies of the newspapers

cuttings inoriginal, containing the publications have been filed

with the affidavit ofservice.

4. In response to the notice issued in the Petition, learned Regional

Director, Northern Region, Ministry of Corporate Affairs has

filed hisaffidavit / report dated 23rd November, 2012 wherein

certain observations have been made for consideration of this

Court. The Petitioner companies have filed their affidavits in

response to the observation of the Regional Director vide two

separate affidavits both dated 13.12.2012.

5. The Regional Director has observed that pursuant to the scheme

proposed by the Petitioner companies, the objects of transferor

company are required to be added to Clause 3(a) of Memorandum

of Association of the transferee company. It is accordingly

submitted that the transferee company may be asked to follow the

procedure prescribed under the Companies Act, 1956. In

response, the Ld. Counsel for the Petitioners has submitted that

upon sanction of the scheme by this Court, Memorandum of

Association of the transferee company will stand amended and no

further act on the part of the transferee company is required to be

taken for giving effect to the said amendment in Memorandum of

Association of the transferee company. Reliance in this regard has

been placed on the judgment of PMP Auto Industries Ltd. (1994)

Vol. 80 Comp.Cases 289, whereby the Hon'ble Bombay High

Court held as follows:-

"Section 391 invests the court with powers to approve or sanction the scheme of amalgamation/arrangement which is for the benefit of the company. In doing so, if there are any other things which, for effectuation, require a special procedure to be followed - except reduction of capital - then the court has power to sanction them while sanctioning the scheme itself. It would not be necessary for the company to resort to other provisions of the Companies Act or to follow other procedures prescribed for bringing about the changes requisite for effectively implementing the scheme, which is sanctioned by the court. Not only is section 391 a complete code, as held by the courts, but, in my view, it is intended to be in the nature of a "single window clearance" system, to ensure that the parties are not put to avoidable, unnecessary and cumbersome procedure of making repeated applications to the court for various other alterations or changes which might be needed effectively to implement the sanctioned scheme, whose overall fairness and feasibility has been judged by the court under section 394 of the Act."

6. The above judgment in no uncertain term clarify that the parties

are not put to avoidable, necessary and cumbersome for making

repeated application to the court for various other alternations or

changes which might be needed to effectively implement the

scheme. The observation of the Regional Director on this issue

are fully addressed by the above case cited by the Petitioners and

this court finds no reason to disagree to the law laid down

therein. It would also be relevant to mention here that the

transferee company in its rejoinder affidavit has undertaken to

make necessary filings to the MCA in order to make a change in

object clause recorded in the online database.

7. The Regional Director has also pointed out that since the

shareholding patterns of both the transferor and the transferee

company show the shares thereof being held by foreign

shareholders, both the companies may be asked to give an

undertaking that necessary formalities under FEMA would be

complied with for the purpose of transferring the shares. Both the

companies in their respective affidavits have given the

undertaking to that effect and accordingly the observation of the

Regional Director stands satisfied.

8. It is further pointed out by the Regional Director that the

transferor company has not filed its balance-sheet as on 31.3.2011

as well as its annual return for the year 2011 and thus stated that it

is in contravention of section 159/220 of the Companies Act,

1956. In response to the said objection, the counsel for the

Petitioners has referred to para 3 of the rejoinder affidavit filed by

the transferor company through its authorized signatory Shri Anil

Agarwal wherein it is stated that the balance-sheet as well as

annual return for the year 2011 have been filed with the Registrar

of Companies. Acknowledgment thereof is placed on record as

Annexure-A to the rejoinder affidavit. Annexure-A reveals that

filing has been done on 06.11.2012 subject to payment of delayed

fee. The filing having been done, no contravention survives.

9. It is further pointed out by the Regional Director that there is a

contravention of provision of Section 217 of the Companies Act,

1956 on the part of the transferee company. In response, the Ld.

Counsel for the Petitioners has referred to para 5 of the rejoinder

affidavit filed by the transferee company through its authorized

signatory Shri Ajay Kapoor wherein it is stated that the alleged

violation is neither intentional nor deliberate and is only a minor

inadvertent omission which in any case is compoundable. The

transferee company further states that it shall apply for

compounding of the offence if any action taken by the Registrar

of Companies. It is also contented by the Petitioners that the

provisions of section 274 (1)(g) are not applicable to a private

limited company.

10. In view of the reply filed by the Petitioner Companies and

undertaking given by the Petitioner Companies and after hearing

the oral submissions made by Mr. Vikas Goel, Ld. Counsel for

the Petitioners, this Court is of the view that neither the Regional

Director nor the official liquidator has pointed out, as to how the

proposed scheme is against the interest of any of the stakeholders

of both the companies or is against the public interest as the

observations made by the Regional Director have been

sufficiently answered by the Petitioner Companies and the

Scheme of Amalgamation needs to be sanctioned by this Court.

11. No objection has been received to the Scheme of

Amalgamationfrom any other party. In this regard, Mr. Vikas

Goel, Advocate of the Petitioner Companies has referred to the

affidavits dated 6th December, 2012 filed on behalf of the

Petitioner Companies stating that neither the management of

Petitioner Companies nor he has received any notice from any

person opposing the Petition pursuant to the citations published in

the Newspapers respectively.

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

from any other party. Mr. Anil Agarwal, Senior Vice President of

the Transferor Company/Demerged Company and Mr. Ajay

Kapoor, Vice President and Controller of the Transferee

Company have filed their respective affidavits dated 6 th

December, 2012 confirming that neither the Petitioner Companies

nor their Legal Counsel have received any objection pursuant to

the citations published in the Newspapers.

13. Even today, During the Course of hearing Mr. K.S. Pradhan,

Deputy Registrar Of Companies for Regional Director

(NorthernRegion) states that he has no objection to the present

Scheme beingsanctioned.

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

Creditors of the Petitioner Companies, representations/ reports

filed by the Regional Director, Northern Region to the proposed

Scheme of Amalgamation and the rejoinder affidavit dated

13.12.2012 of the Petitioner Companies, and the submissions

made in the Court today there appears to be no impediment to the

grant of Sanction to the Scheme of Amalgamation (Annexure-D).

Consequently, sanction is hereby granted to the Scheme of

Amalgamation under Section 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 order

be filed with the Registrar of Companies within 30 days from

receipt of the same. In terms of the provisions of Section 391 and

394 of the Companies Act, 1956 and interms of the Scheme, all

the properties whether movables or immovable, all debts,

liabilities,contingent liabilities, duties and obligations of every

kind, nature and description, all documents of title, deeds, papers,

contracts, licenses,permissions, approvals, Registration,

Authorizations, Rights, lease etc. of the Transferor Company be

transferred to and vest in 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

Companies would voluntarily deposit a sum of Rs. One lac in the

Common Pool Fund of the Official Liquidator within four 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