Delhi High Court
Grand Builders Private Limited & ... vs ........... on 6 August, 2014
Author: Sanjeev Sachdeva
$~20
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 203/2014
IN THE MATTER OF GRAND B UILDERS
PRIVATE LIMITED & ORS.
..... Petitioner
Through: Mr. P. Nagesh with Mr.
Ashutosh Gupta, Advocate for
the Petitioners.
Mr. Atma Sah, Assistant
Registrar of Companies for the
Regional Director.
Mr. Rajiv Bhel Advocate for
the official Liquidator.
CORAM:
HON'BLE MR. JUSTICE SANJEEV
SACHDEVA
ORDER
% 06.08.2014
SANJEEV SACHDEVA, J (ORAL)
1. This second motion joint Petition has been filed
under sections 391 to 394 of the Companies Act,
1956 ("Act") seeking sanction to the Scheme of
Arrangement ("Scheme") of Grand Builders Private
Limited (hereinafter referred to as Demerged
Company), Lumex Caplease Private Limited
(hereinafter referred to as Transferor Company) with
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Jindal Dyechem Industries Private Limited
(hereinafter referred to as 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 respective dates of incorporation of
the Petitioner Companies, their authorised, issued,
subscribed and paid up capital have been set out in
the petition.
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.
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7. The Petitioner Companies had earlier filed C.A. (M)
No. 38 of 2014 seeking directions of this Court for
dispensation of the meetings. Vide Order dated 26 th
February, 2014, this Court allowed the A pplication
and dispensed with the requirement of convening
meetings of Equity Shareholders, Secured Creditors
and Unsecured Creditors of the Petitioner
Companies.
8. The Petitioner Companies have thereafter filed the
present Petition seeking sanction of the Scheme of
Arrangement. Vide order dated 31 st March, 2014,
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 "Indian Express" (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
Newspapers on 5th May, 2014. Copies of the
newspapers cuttings, in original, containing the
publications have been filed with the affidavit of
service.
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9. In response 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 26 th
May, 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 Demerged
Company and Transferor C ompany do not appear to
have been conducted in a manner prejudicial to the
interest of its members, creditors or to public interest
as per 2nd proviso of Section 394(1) of the Act.
10. In response to the notices issued in the Petition, the
Regional Director, Northern Region, Ministry of
Corporate Affairs has filed his affidavit/ report dated
26 th May, 2014 observing as under:
i. That the Petitioner Companies vide their
letter-dated 02.05.2014 has intimated that
certain charges are proposed to be
transferred from the de-merged company
to the Resulting Company. It is submitted
that the name of the company cannot be
substituted in the charged documents as
such for satisfaction of charge; the
company is required to file form no. 17.
In view of this the petitioner company
may be asked to comply with the relevant
provisions of the companies act, 1956 for
satisfaction and creation of charge in
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transferor demerged company and
resulting company respectively.
ii. That it has been observed that as per the
Petition the De-merged Company and the
Transferor Company do not have any
Secured Creditor whereas as per e-
records maintained in his office, both
these companies have created charge on
08.01.2011 and 06.01.2011 and
09.07.2011 respectively and not filed
satisfaction of charge so far, hence both
the companies may be asked as to how it
has complied with the provision of
section 138 of the Companies Act, 1956. "
11. In reply to the aforesaid observations of the Regional
Director, the Petitioner Companies have filed an
Affidavit dated 12 th July 2014 stating that the
Demerged Company has satisfied the charge which
was existing as mentioned by the Regional Director.
The concern of the Regional Director is accordingly
addressed. Further, it has been stated in the
Affidavit that the said charge was created for the
non-fund based L/C facility provided by YES Bank,
to the Transferee Company i.e. Jindal Dyechem
Industries Private Limited and which was never
availed by the Demerged Company, therefore, YES
Bank has not been shown as a secured creditor.
Further, the balance sheet of the Demerged
Company and the Transferor Company also do not
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show any Secured C reditors as the said charge was
against non-fund based facility and that the
Demerged Company has already satisfied the said
charge and has filed the requisite documents and
forms with the Ministry of Corporate Affairs .
12. In view of the aforesaid clarifications given by the
Petitioner Companies, the concern of the Regional
Director has been duly addressed.
13. The Regional Director submits that despite notice,
the Income Tax Authorities have not raised any
objection with regard to the Scheme .
14. Learned Counsel for the Petitioner Companies
submits that no objection has been received to the
Scheme of Arrangement from any other party
confirming that neither the Petitioner Companies nor
their Counsel has received any objection pursuant to
Citations published in the newspapers.
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 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
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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.
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 Demerged
Company and Transferor Company be transferred to
and vest in the Transferee Company wi thout any
further act or deed. Similarly, all the liabilities and
duties of the Demerged Company and Transferor
Company are 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.
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.
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18. The Learned Counsel for the Petitioner submits that
the Petitioner Companies (collectively) would
voluntarily deposit a sum of Rs. 1,50,000/- 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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