In The Matter Of Sharda Sejong Auto ... vs ----
2012 Latest Caselaw 4406 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment:25th July, 2012

+      Co. Pet. No. 121/2012

       IN THE MATTER OF SHARDA SEJONG AUTO
       COMPONENTS ( INDIA) LTD. & ORS.
                    Through: Mrs. Malini Sud, Advocate with
                              Mr. Salil Seth and Ms. Aditi
                              Sharma, Advocates for Petitioner
                              Companies
                              Mr. Rajiv Bahl, Advocate for
                              Official Liquidator.
                              Mr. K.S. Pradhan, Deputy
                              Registrar of Companies for
                              Regional Director (Northern
                              Region).

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1. This second motion joint Petition has been filed under Sections

391(2) and 394 of the Companies Act, 1956 by the abovenamed

Petitioner Transferor Company and Transferee Company, seeking

sanction of the Scheme of Amalgamation of SHARDA SEJONG AUTO

COMPONENTS (INDIA) LIMITED with SHARDA MOTOR

INDUSTRIES LIMITED as amended by the order dated 10.07.2012

passed by this Hon'ble Court.

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 Petitioner

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 Annual Accounts for the year ended 31st March, 2011

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 Companies, 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 are pending against the Petitioner

Companies.

7. So far as the share exchange ratio for amalgamation is concerned,

the Scheme of Amalgamation provides that, upon the Scheme finally

coming into effect, the shares of the Transferor Company (being the

wholly owned subsidiary) of the Transferee Company, shall stand

cancelled and no new equity shares shall be issued to the shareholders of

the Transferor Company in lieu of the shares held by the Transferee

Company. Subsequently, upon the coming into effect of this Scheme,

the authorized Share Capital of the Transferee Company shall

automatically stand increased without any further act, deed or thing on

the part of the Transferee Company including payment of stamp duty

and fees, if any, payable to the concerned Registrar of Companies under

the Companies Act, 1956, by the authorized share capital of the

Transferor Company amounting to Rs. 250,000,000/-, which would be

reorganized in the following manner:

                        Particulars                 Amount (Rs.)
                                                     (In Lacs)
 Authorised:
 50,000,000 Equity Share of Rs. 10/- Each              5000.00
                                     TOTAL
 Issued, Subscribed & Paid-Up
 5,946,326 Equity Share of 10/- Each                    594.63
                                      TOTAL             594.63

8. The Petitioner Companies had earlier filed C.A. (M) No. 4 of

2012, seeking directions of this Court for dispensation / convening of

meetings of their shareholders and the creditors. Vide order dated

04.01.2012 this Court allowed the Application and dispensed with the

requirement of convening the meetings of Shareholders of the

Transferor Company. The Court also dispensed with the requirement of

convening the meetings of the Secured and the Unsecured Creditors of

the Transferor Company as there were none. Further, the Court directed

that separate meetings of the Shareholders, Secured and Unsecured

Creditors of the Transferee Company shall be held on 18.02.2012 at the

India Habitat Centre, New Delhi at 11.00 a.m., 2.00 p.m. and 3.30 p.m.

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

approved unanimously by those who were present and voting.

9. The Transferor and Transferee Company have thereafter, filed

the present Petition seeking sanction of the Scheme of Amalgamation.

Vide order dated 16.03.2012, 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 'Financial

Express' (English Delhi Edition) and 'Veer Arjun' (Hindi Delhi

Edition). Affidavit of Service and Publication has been filed on behalf of

the Petitioners Companies on 07.07.2012, 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 on 10.04.2012.

Copies of the newspaper's cutting, in original, containing the

publications have been filed along with the Affidavit of Service filed on

behalf of the Petitioner Companies.

10. An Application being C. A. (M) No. 1254/2012 under Rule 9 of

the Company Court Rules, 1959 was also filed on behalf of the

Petitioners, inter alia, praying as follows -:

"......a. pass an order to the effect that typographical error in clause 19.4 in the Scheme of Amalgamation as stated in para 3 above stands corrected; and b... pass an order stating that date 01.04.2011 will be read in place of 01.04.2013 in clause 19.4......"

By an order dated 10.07.2012, passed by the Hon'ble Court the

said Application was allowed and it was held that the date mentioned in

line 3 of clause 19.4 of the scheme shall read as 01.04.2013 and not

01.04.2011, which was accepted as being an obvious typographical

error.

11. 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

11.07.2012 wherein he has stated that there is nothing to show that the

affairs of the transferor Company have in any manner been conducted

prejudicial to the interest of its members or to public interest.

12. In response to the notices issued in the Petition, Mr. K.S.

Pradhan, Regional Director (Northern Region) Ministry of Corporate

Affairs, has filed his Affidavit dated 11.07.2012. Relying on Clause 7.1

of Part - II 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 Court.

13. No objection has been received to the Scheme from any other

party. Ms. Malini Sud, learned counsel for Petitioner Companies

Company, has filed an affidavit dated 24.07.2012, confirming that

neither the Petitioner Companies nor has she 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 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 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 of

Amalgamation, the whole or part of the undertakings, 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,

in terms of the Scheme of Amalgamation, all the liabilities and duties of

the Transferor Company be transferred to the Transferee Company,

without any further act or deed. Upon the Scheme of Amalgamation

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. The Petitioner Companies would voluntarily deposit a sum of Rs.

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

three weeks from today.

16. The Petition is allowed in the above terms.

17. Order dasti.

INDERMEET KAUR, J JULY 25, 2012 rb