Delhi High Court
Yasaki Exports Pvt Ltd vs .......... on 6 August, 2014
Author: Sanjeev Sachdeva
$~45
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 174/2014
IN THE MATTER OF
YASAKI EXPORTS PVT LTD .....Petitioners
Through: Mr. Rajeev K Goel, Advocate for
the petitioners,
Mr. Atma Sah, Assistant
Registrar of Companies for the
Regional Director.
Mr. Rajiv Behl, Advocate for
Official Liquidator.
CORA M:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 06.08.2014
SANJEEV SACHDEVA, J (ORAL)
1. This second motion joint Petition filed under sections
391 to 394 of the Companies Act, 1956 ("Act") seeking
sanction to the Scheme of Arrangement ("Scheme") (a)
Amalgamation of Yasaki Exports Pvt Ltd (Transferor
Company No. 1), Strong Developers Pvt Ltd
(Transferor Company No. 2), India Dotcom
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Technologies Pvt Ltd (Transferor Company No. 3),
VDM Consultancy & Marketing Pvt Ltd(Transferor
Company No. 4), Viable Builders Pvt Ltd(Transferor
Company No 5), Able Realtors Pvt Ltd (Transferor
Company No. 6), Stir Cement Product Pvt Ltd
(Transferor Company No. 7), Manglam Infotech Pvt
Ltd(Transferor Company No. 8) and Anjaneyay
Exports Pvt Ltd (Transferor Company No. 9)
(collectively know n as the Transferor Companies) with
Core International Ltd (Transferee Company) b)
Reduction of post merger share capital of the
Transferee Company (Collectively referred as the
Petitioner Companies). A copy of the Scheme has been
enclosed with the petition.
2. The registered offices of the Petitioner Companies are
situated at New Delhi, within the jurisdiction of this
Court.
3. The details of the respective dates of incorporation of
the Petitioner Companies, their authorised, issued,
subscribed and paid up capital have been set out in the
Petition.
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4. The copies of the Memorandum and Articles of
Association of the Petitioner Companies have been
enclosed with the Petition.
5. The copies of resolutions passed by the Board of
Directors of the Petitioner Companies approving the
Scheme have also been filed along with the Petition
6. Learned Counsel for the Petitioner Companies submits
that no proceedings under sections 235 to 251 of the
Companies Act, 1956 is pending against the Petitioner
Companies.
7. The Petitioner Companies had earlier filed CA (M) 31
of 2014 seeking directions of this Court for
dispensation/convening of meetings. Vide order dated
18 th February, 2014, this Court allowed the Application
and requirement of convening all the meetings of
Shareholders and Creditors of the Transferor
Companies No. 1 to 9 and the Transferee Company has
been dispensed with.
8. The Petitioner Companies had thereafter filed the
present Petition seeking sanction to the Scheme of
Arrangement. Vide order dated 12 th March, 2014,
notice of the Petition was directed to be issued to the
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Registrar of Companies, Regional Director, Northern
Region, Ministry of Corporate Affairs and the Official
Liquidator attached with this Court. Citations were also
directed to be published in „Business Standard‟
(English, Delhi Edition) and „Dainik Bhaskar‟ (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. Copies of the newspaper cuttings,
in original, containing the publications have also been
filed along with the Affidavit of Service.
9. In response to the notice issued, the Official Liquidator
sought information from the Petitioner Companies.
Based on the information received, learned Official
Liquidator has filed his report dated 8th July, 2014,
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 Companies, which
are subject matter of dissolution, do not appear to have
been conducted in a manner prejudicial to the interest
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of its members, creditors or to public interest as per 2 nd
proviso of Section 394(1) of the Act .
10. In response to the notice issued in the Petition, learned
Regional Director, Northern Region, Ministry of
Corporate Affairs has filed his Affidavit/Report dated
4th July, 2014. Relying on the Scheme of Arrangement,
he has stated that, upon sanction of the Scheme, all the
employees of the Transferor Companies shall becom e
the employees of the Transferee Company without any
break or interruption in their services. Despite notice,
the Income Tax Authorities have not raised any
objection with regard to the Scheme .
11. The Learned Regional Director has stated that the
Registrar of Companies, Delhi has reported that all the
Transferor Companies and the Transferee Company are
closely held companies. However, there is no mention
as to whether these companies are registered with
Reserve Bank of India as NBFC. If so, these
Companies have obtained no objection from the RBI
with regard to the proposed Scheme .
12. In response to the aforesaid observations, the Petitioner
Transferee Company in the Reply Affidavit dated 7 th
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July, 2014, has confirmed that none of the Petitioner
Transferor Companies or the Transferee Company is a
non banking finance company (NBFC) as defined in
the Reserve Bank of India Act, 1934. Hence, RBI
registration and RBI NOC is not applicable. A
certificate from the Chartered Accountant to this effect
has been filed in the Court along with the aforesaid
reply affidavit. The Petitioner Companies and their
Directors have also undertaken that they will be bound
for any action which may be taken by the RBI in future
for any act of commission or omission by the Petitioner
Companies with regard to NBFC regulations .
13. In view of the aforesaid clarification and undertaking
given by the Petitioners, the concern of the Regional
Director has been duly addressed.
14. No objection has been received to the Scheme of
Arrangement from any other party. Mr Vinod Kumar,
Director of the Transferee Company has filed an
affidavit confirming that neither the Petitioner
Companies nor their Counsel has received any
objection pursuant to citations published in the
newspapers.
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15. 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.
16. Certified copy of the formal 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, all
the property, rights and powers of the Transferor
Companies be transferred to and vest in the Transferee
Company without any further act or deed. Similarly,
all the liabilities and duties of the Transferor
Companies be transferred to the Transferee Company
without any further act or deed. Upon the Scheme
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coming into effect, the Transferor Companies shall
stand dissolved without winding up.
17. It is however, clarified that this order will not be
construed as an order granting exemption from
payment of stamp duty 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.
18. The Learned Counsel for the Petitioner submits that the
Petitioner Companies (collectively) would v oluntarily
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.
19. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
AUGUST 6, 2014
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