Bhaskar Refractories And Sw Pipes ... vs ---------------------
2012 Latest Caselaw 6513 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Judgment:07.11.2012

+       COMPANY PETITION NO. 334 OF 2012

BHASKAR REFRACTORIES AND SW
PIPES PRIVATE LIMITED     .......... Demerged Company

                                  AND

B N B S CEMENTS AND PRODUCTS
PRIVATE LIMITED            ...................Resultant Company


                              Through Mr. Mukesh Sukhija, Advocate
                              for the Petitioners
                              Mr. K.S. Pradhan, Deputy Registrar of
                              Companies for the Regional Director
                              Mr. Rajiv Bahl, Advocate for the Official
                              Liquidator
        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 Demerged Company and

Resultant Company seeking sanction of the Scheme of Arrangement of

Demerger of Estate Division of BHASKAR REFRACTORIES AND

SW PIPES PRIVATE LIMITED (Demerged Company); into B N B S

CEMENTS AND PRODUCTS PRIVATE LIMITED (Resultant

Company).

2 The registered offices of the Petitioner Demerged Company and

Resultant Company are situated at New Delhi, within the jurisdiction of

this Court.

3 Details with regard to the date of incorporation of Demerged

Company and Resultant 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, 2011 of the Petitioner

Demerged Company and Resultant 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 Arrangement 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

Companies.

7 So far as Share Exchange ratio is concerned, the Scheme

provides that upon amalgamation of the 'Demerged Companyinto the

'Resultant Company' pursuant to the Scheme of Arrangement, the

following would be the share Exchange Ratio:

"790 (Seven Hundred Ninety) Equity shares of the face value of Rs. 100/- for every 100 (One Hundred) equity shares of Rs. 100 each held, for the proportionate capital employed in the Estate Division of the Demerged Company."

8 The Petitioner Companies had earlier filed CA (M) No. 110

seeking directions of this Court for dispensation/convening of meetings.

Vide order dated July 4, 2012, this Court allowed the Application and

dispensed with the requirement of convening meetings of Shareholders,

Secured Creditors and Un-secured Creditors of the Demerged Company

and the Resultant Company.

9 The Petitioner Demerged Company and the Resultant Company

have thereafter filed the present Petition seeking sanction of the Scheme

of Arrangement. Vide order dated July 20, 2012, notice in the Petition

was directed to be issued to the Regional Director, Northern Region.

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 also regarding publication of citations in

the aforesaid newspaper on October 26, 2012. Copies of the newspaper

cuttings, in original, containing the publications have been filed along

with the Affidavit of Service.

10 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 1st November, 2012.

Relying on Clause 8 (a) of the Scheme of Arrangement, he has stated

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

the Demerged Company shall become the employees of the Resultant

Company without any break or interruption in their services upon

sanctioning of the Scheme of Arrangement by the Hon'ble Court. He

has vide para 4 of his affidavit submitted as follows:

"4. That the deponent further craves leave to submit that the individual assets and liabilities an the values thereof pertaining to "Estate Undertaking" of the Demerged Company Viz. M/s Bhaskar Refractories & SW Pipes Pvt Ltd. proposed to ebe transferred to the Resulting Company Viz. M/ B N B S Cements

Products Pvt Ltd. are not mentioned in the Scheme. Since Shareholders and Creditors of the Companies have approved the Scheme of Arrangement as such, it should have been part of the Scheme of Arrangement so that the details of the individual assets and liabilities and the values thereof pertaining to De-merged Undertaking are known to the Shareholders & Creditors of both the Transferor & Transferee Company."

11 In response to the observations of the Ld. RD the Petitioner

Companies have filed an affidavit vide stating as follows:

3. That with regard to the above observations, the deponent submits as follows:

(i) That the present Scheme of Arrangement involves the Holding Company and the Subsidiary Company i.e. the Estate Division of the M/s Bhaskar Refractories and SW Pipes Private Limited- Demerged Company (being the holding company of Resultant Company) is demerging into M/s B N B S Cements And Products Private Limited- the Resultant Company (being wholly owned subsidiary of the De-merged Company). Also both the Companies are controlled by the members of the same family.

(ii) The copy of the Scheme of Arrangement was provided to all the shareholders and the creditors of the De-merged Company and the Resultant Company and was approved by them.

(iii) That the Scheme of Arrangement is to take effect from 1st day of April 2011 and complete balance sheet of the Demerged Company as at 31st March 2011 was approved by the

shareholders of Demerged Company and filed along with the First Motion Application filed with this Hon'ble Court.

(i) That the Ld. Regional Director vide their letter bearing no. 6/145/T-

1/2011/3179 dated 8th August 2012 directed the petitioner Companies to submit the details of the Estate Division and the Petitioner Companies vide their reply dated 8th October 2012 duly submitted the details as directed by the Ld. RD. The copy of the letter issued by Ld.

RD and the reply submitted by the Petitioner Companies are enclosed herewith and marked as Annexure: A (Colly)

(ii) However the balance sheet of the Estate Division of the Demerged Entity as at 31st March 2011 is enclosed herewith for ready reference and marked as Annexure: B

12 In view of the submissions made hereinabove the observations made by the Ld. RD do not survive.

13 No objection has been received to the Scheme of

Arrangement from any other party. The respective directors for the

Petitioner Companies, has filed an affidavit dated 3rd November,

2012, confirming that neither the Petitioner Companies nor the

counsel for the petitioner Companies 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 to the proposed Scheme of

Arrangement, there appears to be no impediment to the grant of

sanction to the Scheme of Arrangement. Consequently, sanction is

hereby granted to the Scheme of Arrangement 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, the whole of the assets, rights and powers of

the Estate Division of Demerged Company be transferred to and vest

in the Resultant Company without any further act or deed. Similarly,

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

Division of Demerged Company be transferred to the Resultant

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

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 three

weeks from today. The statement is accepted.

    16           The Petition is allowed in the above terms.


                 Order Dasti.

                                                 INDERMEET KAUR, J
NOVEMBER 07, 2012
A