Nicols International Pvt. Ltd. vs ----------------
2012 Latest Caselaw 5261 Del

$~A14
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                  Date of Judgment:4th September, 2012

+      Co. Pet. No. 172/2012

              PETITION UNDER SECTIONS 391(2) & 394
                   OF THE COMPANIES ACT,1956

IN THE MATTER OF

NICOL'S INTERNATIONAL PVT LTD                       ...Petitioner/
                                            Transferor Company

                                 AND

NICOLS INDIA PVT LTD                               ...Petitioner/
                                            Transferee Company
                           Through :   Mr. Manoj Kumar Garg &
                                       Mr.Animesh K. Sinha,
                                       Advocate for the Petitioners
                                       Mr. K.S. Pradhan, Deputy
                                       Registrar of Companies, for the
                                       Regional Director
                                        (Northern Region)
                                       Mr. Rajiv Bahl, Advocate for
                                       the Official Liquidator
       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

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

391 & 394 of the companies Act, 1956 by the Petitioner Transferor

Company and Transferee Company seeking sanction of the Scheme of

Amalgamation of Transferor Company - Nicol's International Private

Limited with Transferee Company Nicols India Private Limited.

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 Transferor and

Transferee Companies, 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 Transferor and Transferee Companies have also been enclosed

with the Petition.

5. Copies of the Resolutions passed by the Board of Directors of the

Transferor and Transferee 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 is pending against the Petitioner

Companies.

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

Scheme provides that, upon the Scheme finally comes into effect, the

Transferee Company shall issue shares in the following manner:

 1 Equity Share of Rs. 10/- each, credited as fully paid-up,

of the Transferee Company for every 10 Equity Share of Rs. 10/-

each held in the Transferor Company.

8. The Petitioner Companies had earlier filed CA (M) No. 39 of

2012 seeking directions of this Court for dispensation/convening of

meetings. Vide order dated 15.03.2012, this Court allowed the

Application and dispensed with the requirement of convening meetings

of Shareholders as well as the secured and unsecured creditors of the

Transferor and Transferee Company.

9. The Petitioner Transferor Company and the Transferee Company

have thereafter filed the present Petition seeking sanction of the Scheme

of Amalgamation. Vide order dated 23.04.2012, 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

'Business Standard' (English, Delhi Edition) and 'Jansatta' (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 newspaper on

05.05.2012. Copies of the newspapers' cuttings, in original, containing

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

10. Pursuant to the notices issued, the Official Liquidator sought

information from the Petitioner Companies. Based on the information

received, the official Liquidator has filed its report dated 09.08.2012

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

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.

11. 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 24.07.2012. Relying on

Clause 7 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.

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

from any other party. Mr. S.P. Seth, Authorized Representative of the

Transferee Company and Mr. Manoj Kumar Garg, Learned Counsel for

Petitioner Companies, have filed an affidavit dated 09.08.2012,

confirming that the Petitioner Companies nor their Legal Counsel has

received any objection pursuant to citations published in the

newspapers.

13. 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 , the

whole or part of the undertaking, the property, 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 charges, if payable in

accordance with any law; or permission/compliance with any other

requirement which may be specifically required under any law.

14. Learned Counsel for the Petitioners states that Petitioner

Companies would voluntarily deposit a sum of Rs. 1,00,000/- with the

Common Pool fund of the Official Liquidator within three weeks from

today. The statement is accepted.

15. The Petition is allowed in the above terms.

Order Dasti.

h

INDERMEET KAUR, J SEPTEMBER 04, 2012 rb