Doosan Power Systems India ... vs Doosan Chennai Works Private ...
2012 Latest Caselaw 4035 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Date of Judgment:10.7.2012

+                    CO.PET. 151/2012



       DOOSAN POWER SYSTEMS INDIA PRIVATE LIMITED
                            Petitioner/Transferor Company
                   AND
       DOOSAN CHENNAI WORKS PRIVATE LIMITED
                            Transferee Company

                     Through:   Mr.Mahesh Aggarwal and Mr. Rajeev
                                Advocate for the Petitioners

                                Mr.K.S.Pradhan, Dy. Registrar of
                                Companies for the Regional Director

                                Mr.Ashish Makhija, Advocate for the
                                Official Liquidator


       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

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

Companies Act, 1956 (for short 'Act') by the Petitioner/Transferor

Company seeking sanction of the Scheme of Amalgamation (for short

'Scheme') of Doosan Power Systems India Private Limited (hereinafter

referred to as 'Petitioner Company' or the 'Transferor Company') with

Doosan Chennai Works Private Limited (hereinafter referred to as

'Transferee Company').

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

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

registered office of the Transferee Company is situated at Chennai,

outside jurisdiction of this court.

3. Details with regard to the date of incorporation of

Petitioner/Transferor Company, its authorized, issued, subscribed and

paid up capital have been given in the petition.

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

the latest audited Annual Accounts for the year ended 31.03.2011 along

with the unaudited Provisional Accounts as on 31.01.2012 of the

Petitioner/Transferor Company have also been enclosed with the

petition.

5. Copy of the Resolution passed by the Board of Directors of the

Petitioner/Transferor Company approving the Scheme of Amalgamation

has also been placed on record with the petition.

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

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

petitioner/Transfer 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:

7(Seven) Equity Share of Rs.100/- each, credited as fully paid-up,

of the Transferee Company for 1 (One) Equity Share of Rs.100/-

each held in the Transferor Company.

8. The Petitioner/Transferor Company had earlier filed CA(M)

No.57 of 2012 seeking directions of this Court for dispensation of

meetings. Vide order dated 28.03.2012, this Court allowed the aforesaid

application and dispensed with the requirement of convening meetings

of Shareholders and Unsecured Creditors of the Petitioner/Transferor

Company. The Petitioner/Transferor Company had no secured

Creditors.

9. The Petitioner/Transferor Company has thereafter filed the

present petition seeking sanction of the Scheme of Amalgamation. Vide

order dated 13.04.2012, notice of the petition was directed to be issued

to the Regional Director, Northern Region and the Official Liquidator.

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

(English edition) and 'Nav Bharat Times' (Hindi edition). 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 the Official Liquidator, and also regarding

publication of citations in the aforesaid newspaper on 10.6.2012.

Copies of the newspaper cuttings, in original, containing the

publications have been filed along with the Affidavit of Service.

11. Pursuant to the notices issued, the Office Liquidator sought

information from the Petitioner/Transferor Company. Based on the

information received, the Official Liquidator has filed his report dated

05.7.2012 wherein he has stated that he has not received any complaint

against the Scheme from any persons(s)/parties) interested in the

Scheme in any manner and that the affairs of the Petitioner/Transferor

Company do not appear to have been conducted in a manner prejudicial

to the interest of its members, creditors or to public interest.

12. In response to the notices issued in the petition, Mr.B.K.Bansal,

Learned Regional Director, Northern Region, Ministry of Corporate

Affairs has filed his Affidavit/Report dated 20.6.2012. Relying on

Clause 11.1 of Part-III of the Scheme of Amalgamation, he has stated

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

of the Petitioner/Transferor Company shall become the employee of the

Transferee Company without any break or interruption in their services

upon sanctioning of the Scheme of Amalgamation by the respective

jurisdictional High Court(s).

13. Further, the Regional Director, in para No.5.1 & 6.1 of the

affidavit dated 20.6.2012 has made an observation that the Name and

Memorandum of Association of the Transferee Company can be

changed/altered only after following the procedure prescribed under the

Companies Act, 1956.

14. In reply to the abovesaid observation, a rejoinder affidavit dated

06.7.2012 has been filed by Mr.Ja Yong Ku, Director and Authorised

Signatory of the Transferor Company, stating that the said observation

made by the Regional Director states to Doosan Chennai Works Private

Ltd. being the Transferee Company which is incorporated under the

provisions of the Companies Act, 1956 having its registered office in

Chennai. Separate proceedings with regard to the Transferee Company

in the High Court of Madras at Chennai are under progress. As a part of

the High Court proceedings in Chennai, notices have been served to

Regional Director (RD) and Regional Registrar of Companies (RoC).

Without prejudice to the above, it is also submitted in the rejoinder that

the approval of the Scheme in terms of Section 391-394 of the Act is a

'Single Window Clearance' and no further fact on the part of

Transferee Company is required to be done after the approval of the

Scheme, for giving effect to the alteration in the Memorandum of

Association and change in Name of the Transferee Company. Further,

the proposed Scheme has been approved by the respective shareholders

and unsecured creditors of both the Transferor and Transferee Company.

The petitioner further submits that, as provided in the Scheme, the

Transferee Company will file all the forms in respect of alteration of

memorandum of association and change of name with the Registrar of

Companies, Chennai as required under the relevant provisions of the

Act.

15. The petitioner further relies upon the order dated 18.7.2011

passed by this Court in the matter of BSK Engineers Pvt. Ltd.

(Company Petition NO.44/2011), wherein similar objections raised by

the Regional Director, had been rejected by this Court. Copy of the said

order has been placed on record.

16. In view of the aforesaid submissions, objections raised by the

Regional Director no longer Survive.

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

from any other party. Mr.Ja Yong Ku, Director of the

Petitioner/Transferor Company, has filed an affidavit dated 06.7.2012,

confirming that neither the Petitioner Company nor its Legal Counsel

has received any objection pursuant to citations published in the

newspapers.

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

Creditors of the Petitioner/Transferor Company, 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/Transferor Company

will comply with the statutory requirements in accordance with law.

Certified copy of the order will 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 Act, and in terms of the

Scheme, the whole of the undertaking, the property, rights and powers

of the Petitioner/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 dues of the

Petitioner/Transferor Company will 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. The

Transferor Company shall stand dissolved without following the process

of winding up.

Further, since the jurisdiction of the Transferee Company is

before the High Court of Madras and the said Transferee Company has

already move a petition over there, this order is subject to the sanction of

the Scheme by the High Court of Madras.

19. Learned counsel for the Petitioner states that the Petitioner

Company would voluntarily deposit a sum of Rs.1,00,000/- in the

Common Pool Fund of the Official Liquidator within three weeks from

today. The statement is accepted.

20. The petition is allowed in the above terms.

Order dasti.

INDERMEET KAUR, J

JULY 10, 2012 nandan