Vienova Education Private ... vs ----
2012 Latest Caselaw 5312 Del

$~10
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Date of Judgment:06.9.2012

+           COMPANY PETITION NO. 212 OF 2012


IN THE MATTER OF

The Companies Act, 1956

AND

Petition Under Section 391 to 394 of the Companies Act, 1956

                 SCHEME OF AMALGAMATION

VIENOVA EDUCATION PRIVATE LIMITED

                 PETITIONER NO. 1/TRANSFEROR COMPANY


                              AND

VIENOVA TECHNOLOGY PRIVATE LIMITED
            PETITIONER NO. 2/TRANSFEREE COMPANY


                                   Through - Mr. Saurabh Kalia,
                                   Sameer Chaudhary and Mr. A. K.
                                   Kuchhal for Petitioner Companies

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

                                   Mr. Rajiv Bahl, Advocate for the
                                   official Liquidator
CPNo.212/2012                                 Page 1 of 8
         CORAM:
        HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1. This Second motion joint petition has been filed under

Sections 391 to 394 of the Companies Act, 1956 (hereinafter

referred to as „Act‟) by the petitioner Companies seeking

sanction of the Scheme of Amalgamation (hereinafter referred

to as „Scheme‟)

2. The petitioner companies had earlier filed C.A. (M) No. 58 of

2012 seeking directions of this Court for dispensation of the

meetings. Vide Order dated 25.04.2012, this court allowed the

application and dispensed with the requirement of convening

meetings of Equity Shareholders, Secured and Unsecured

Creditors of the Petitioner Companies.

3. The Petitioner Companies have thereafter filed the present

petition seeking sanction of the Scheme of Amalgamation.

Vide order dated 09.05.2012, 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) and

"Jansatta" (Hindi). Affidavit of service and publication has

been filed by the petitioners showing compliance regarding

service of the petition on the Regional Director (NR);

Registrar of Companies, NCT of Delhi & Haryana and the

Official Liquidator and also regarding Publication of Citations

in the aforesaid Newspapers on 07.06.2012, copies of the

newspapers cuttings, in original, containing the publications

have been filed 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 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.

5. In response to the notices issued in the Petition, learned

Regional Director, Northern Region, Ministry of Corporate

Affairs has filed his affidavit / report dated 07.08.2012.

Relying on para 7.1 of part III of the Scheme of

Amalgamation, he has stated that, upon sanction of the

Scheme of Amalgamation all the employees of the Transferor

Company shall become the employees of Transferee Company

without any break or interruption in their services upon

sanctioning of the Scheme of Amalgamation by the Hon‟ble

Court.

6. That the Regional Director (NR) in para 5 and 5.1 of the

affidavit has also stated that ROC, Delhi has reported an

investment in Transferor Company from a Mauritius based

foreign investment company. In view of the same the

Petitioner Companies may be asked to clarify whether any RBI

approval was required under FEMA in regards to receiving of

money from foreign investor, if deemed fit and proper by this

Hon‟ble Court. The Petitioner Companies in their response

dated 03.09.2012 has stated that vide letter dated 01.08.2012,

both the Transferor and Transferee companies have intimated

to the Regional Director (NR) that as said funds were received

under the automatic route of FDI, and as per the extant policy,

no approval of RBI was required for inward remittance of

funds from the automatic route. Furthermore, it is submitted

that all requisite compliances including filing of relevant forms

have been undertaken by the petitioner companies and the

requirement as needed post-merger will also be completed by

the petitioner companies.

7. In para 6 and 6.1 of the Regional Director (NR) affidavit,

relying upon para 4.20 of part III of the scheme the Regional

Director, NR has stated that it provides for change of name of

Transferee Company to that of Transferor Company post-

merger and the Transferee Company be asked to follow the

relevant procedure under the Companies Act, 1956. The

petitioner companies vide their reply affidavit dated

03.09.2012 in para 5 has stated that the said observation is of

procedural compliance in nature and the Transferee Company

gives an undertaking that post approval of the scheme the

company will follow the procedure as prescribed under the

Companies Act, 1956 for such change of name.

8. No objection has been received to the Scheme of

Amalgamation from any other party, the director of the

petitioner companies has stated in his affidavit dated

03.09.2012 confirming that he has not received any objection

pursuant to the citations published in the Newspapers. The

counsel for the petitioner companies has also filed affidavit

dated 09.08.2012 confirming that he has not received any

objection pursuant to the citations published in the

Newspapers

9. Even today, During the Course of hearing Mr. Rajiv Bahl,

Learned counsel for the Official Liquidator and Mr. K.S.

Pradhan, Deputy Registrar of Companies for Regional

Director (Northern Region) state that they have no objection to

the present Scheme being sanctioned.

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

Creditors of the petitioner Companies, representations/ 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 Section 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 receipt of the same. In terms of the provisions of

Section 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.

11. Learned counsel for the petitioners states that 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. The statement is accepted.

12. The petition is allowed in the above terms.

Order Dasti.

INDERMEET KAUR, J.

SEPTEMBER 6, 2012 nandan