S.A. Infratech Private Limited & ... vs ...................
2012 Latest Caselaw 7303 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Judgment:20.12.2012

+      CO. PET. 340/2012

IN THE MATTER OF :
S.A. INFRATECH PRIVATE LIMITED
                            ......TRANSFEROR COMPANY

                                  WITH

RAMPRASTHA PROMOTERS & DEVELOPERS
PRIVATE LIMITED          ......TRANSFEREE COMPANY


                       THROUGH:        Mr. Virender Ganda Sr. Advocate
                                       with Mr. S.K. Giri Advocate for
                                       petitioners.
                                       Mr.S.K. Pradhan, Dy. Registrar
                                       on behalf of the ROC.
                                       Mrr. S.B. Gautam, official
                                       liquidator.


INDERMEET KAUR, J. (Oral)

1 This second motion joint Petition has been filed under Section

391 and 394 of the Companies Act, 1956 (for short 'Act') by the

Petitioner Companies seeking sanction of the Scheme of Amalgamation

(for short 'Scheme').

2 The Petitioner Companies had earlier filed CA (M) No. 105 of

2012 seeking directions of this Court for convening of meetings. Vide

order dated 31.05.2012, this court allowed the Application whereby the

Transferor Company was exempted from convening meetings of

shareholders and Creditors and the transferee Company was exempted

from convening meetings of the shareholders and directed convening of

meetings only of Secured and Unsecured Creditors of the Transferee

Company. In the meetings directed by this Court, the Scheme was

approved unanimously by those who were present and voting.

3 The Petitioner Companies had thereafter filed the present Petition

seeking sanction of the Scheme. Vide Order dated 24.07.2012, notice in

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 'Business Standard' (English,

Delhi Edition) and 'Nav Bharat 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 newspapers. Copies of the

newspaper cuttings, in original, containing the publications have been

filed along with the Affidavit of Service.

4 Pursuant to the notices issued, the Official Liquidator sought

information from the Petitioner Companies. based on the information

received, the Official Liquidator has filed his report dated 31.10.2012,

wherein he has stated that he has not received any complaint against

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.

5 In response to the notices issued in the Petition, Mr. Rakesh

Chandra , Regional Director, Northern Region, Ministry of Corporate

Affairs has filed his Affidavit dated 04.012.2012. Relying on Clause 4

of Part - II of the Scheme, he has stated that, upon sanction of the

Scheme, all the employees of the Transferor Company shall become the

employees of the Transferee Company without any break or interruption

in their services. In the Affidavit, it has been further stated as under:-

" That the Deponent craves leave to submit that as per Clause 4 of Part-II of the Scheme of Amalgamations , all the Permanent staff/

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 Court.

That the Deponent further craves leave to submit that the above information observation furnished by the Registrar of Companies. Delhi are material information with reference to the state of the affairs of the Company. Therefore, it is submitted that the Transferor & Transferee Companies may be asked to give an undertaking for all compliances from Reserve Bank of India as required under FEMA for above transactions involving foreign banks/ entities. If deemed fit & proper by the Hon'ble Court".

6 Learned Senior Counsel for Petitioner undertakes to this

Court that the petitioners Companies shall comply with the

Accounting Standard-14 issued by the Institute of Chartered

Accountant of India. He also confirms all relevant statutory

Compliances as required the applicable Provision of FEMA have

been duly complied with by the Transferee Company to the

satisfaction of the Reserve Bank of India and this connections he

also draws attention of this Court to the affidavit dated 14.12.2012

filed by Mr. Arvind Walia an authorized Person of the Transferee

Company in the said affidavit, it has been stated as under:

"3. That in response to the contents of para 4, it is hereby confirmed that the Petitioner Companies shall comply with the Accounting Standard -14 issued by the Institute of Chartered Accountants of India."

"9. That the Petitioner Companies do hereby undertake and confirm that all the relevant statutory compliances as required under the applicable provisions of FEMA have duly complied with, by the Transferee Company, to the satisfaction of Reserve Bank of India." Ld. Sr. Counsel for the petitioner companies hereby undertake that the transfer of shares as referred to in para 6 of the aforesaid affidavit dated 14.12.2012 shall be incorporated in Annual Return made upto 30.9.2008 and the revised annual return shall be revised within two weeks from the date hereof.

7 In view of the aforesaid, the observation made by the Regional

Director, no longer survives.

8 No objection has been received to the Scheme from any other

party. Mr. Sandeep Yadav Director for the Petitioner Companies has

filed an affidavit confirming that neither the Petitioner Companies nor

he has received any objection pursuant to citations published in the

newspapers.

9 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 the 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 section 391 and 394 of

the Act. 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 thirty days from the date of

receipt of the same. In terms of the provisions of Section 391 and 394 of

the Act, and in terms of the Scheme, the whole or part of the

undertakings, all properties, 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 changes, if payable in accordance with any law; or

permission/compliance with any other requirement which may be

specifically required under any law.

10 The Petitioner Companies voluntarily state that they would

deposit a sum of Rs. One lac with the Common Pool fund of the

Official Liquidator within three weeks from today.

11     The Petition is allowed in above terms.

       Order dasti.



                                             INDERMEET KAUR, J
DECEMBER 20, 2012
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