Delhi High Court
Evaxo Pharma Private Limited & ... vs .............. on 8 August, 2014
Author: Sanjeev Sachdeva
$~25
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 249/2014
IN THE MATTER OF EVAXO PHARMA PRIVATE
LIMITED & ANR. ..... Petitioners
Through: Mr. S.M. Sundaram, Advocate
for the Petitioners.
Mr. Atma Sah, and Assistant
Registrar of Companies for the
Regional Director.
Mr. Rajiv Bhel Advocate for the
Official Liquidator.
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 08.08.2014
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
Amalgamation ("Scheme") of Evaxo Pharma Private
Limited (hereinafter referred to as Transferor
Company) with USK Health Care Private Limited
(hereinafter referred to as Transferee Company)
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(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.
7. The Petitioner Companies had earlier filed CO. APPL.
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(M). 36/2014 seeking directions of this court for
dispensation for convening of meetings of
shareholders. This Court vide its Order dated 3rd
March, 2014 allowed the Application and dispensed
with the requirement of convening meetings of
shareholders of the Transferor and Transferee
Companies. Both Transferor and Transferee Companies
have no Secured and Unsecured Creditors.
8. The Petitioner Companies have thereafter filed the
present petition seeking sanction of the Scheme of
Amalgamation. Vide Order dated 23rd April, 2014
notice in the petition was directed to be issued to the
Official Liquidator, Registrar of Companies and the
Central Government (through Regional Director,
Northern Region, Ministry of Corporate Affairs).
Citations were also directed to be published in „The
Statesman‟ (English) and „Jansatta‟ (Hindi). Affidavit
of Service and Publication has been filed by the
Petitioners showing compliance regarding service of
the petition on the Official Liquidator, ROC and
Regional Director and also regarding publication of
citations on 7th June, 2014 in "The Statesman"
(English) and "Jansatta" (Hindi) respectively. Copies of
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the newspapers cutting, in original, containing the
publications have been filed along with the Affidavit of
Service.
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 27th 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 Company do not
appear to have been conducted in a manner prejudicial
to the interest of its members, creditors or to public as
per 2 nd proviso of Section 394(1) of the Act.
10. In response to the notices issued in the Petition, learned
Regional Director, Northern Region, Ministry of
Corporate Affairs has filed his affidavit/report dated
11th July, 2014. Relying on Clause 3.1 of Part-
II of the Scheme, he has stated that 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 by the Court. Despite notice, the Income Tax
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Authorities have not raised any objection with regard to
the Scheme.
11. The Learned Regional Director has observed that the
Petitioner Companies may be asked to comply
with/adopt accounting treatment as prescribed under
the Accounting Standard - 14 issued by the Institute of
the Chartered Accountants of India and comply with
the provisions of Section 2 (43) of the Companies Act,
2013.
12. In reply to the aforesaid observation of the Learned
Regional Director, the Petitioner Companies have filed
an Affidavit dated 27th July 2014 wherein it has been
undertaken that the Petitioner Companies shall comply
with the provisions of Accounting Standard - 14 issued
by the Institute of the Chartered Accountants of India
and shall comply with provisions of section 2 (43) of
the Companies Act, 2013.
13. In view of 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
Amalgamation from any other party, Dr. Umesh Kalra,
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Director of the Petitioner Companies has filed their
affidavit dated 27th July, 2014 confirming that neither
the Petitioner Companies nor their Legal Counsel has
received any objection pursuant to the 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
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
Company be transferred to and vest in the Transferee
Company without any further act or deed. Similarly, all
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the liabilities and duties of the 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.
18. The Learned Counsel for the Petitioner submits that the
Petitioner Companies (collectively) would voluntarily
deposit a sum of Rs 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 8, 2014
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