Delhi High Court
Cellnext Solutions Limited & Ors. vs ............ on 11 August, 2014
$~18
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 305/2014
IN THE MATTER OF:
CELLNEXT SOLUTIONS L IM ITED & ORS . .... PETITIONERS
Through: Mr. Rajeev Kumar, Advocate for
the Petitioners.
Mr. Atma Sah, and Assistant
Registrar of Companies for the
Regional Director.
Mr. Rajiv Behl Advocate for the
Official Liquidator.
CORA M:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 11.08.2014
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 Cellnext Solutions
Limited (hereinafter referred to as Transferor Company
No.1) and Gingersoft Media Private Limited
(hereinafter referred to as Transferor Company No.2),
==================================================
and Packet Shaper Technologies Private Limited
(hereinafter referred to as Transferor Company No.3)
with ValueFirst Digital Medial Private Limited
(hereinafter referred to as Transferee Company)
(collectively referred to as Petitioner Companies) and
their respective shareholders and Creditors . 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 as well as the latest Audited Annual
Accounts of the Petitioner C ompanies for the year
ended 31 st March 2013 have also been placed on
record.
5. The copy of the Resolution passed by the Board of
Directors of the Petitioner Companies approving the
Scheme has also been placed on record 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.
(M). 53/2014 seeking directions of this C ourt for
dispensation for convening of meetings of
shareholders. This Court vide its Order dated 25 th
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 has thereafter filed the
present Petition seeking sanction of the Scheme. Vide
order dated 9th May, 2014, notice of the Petition was
directed to be issued to the Official Liquidator,
Registrar of Companies and The Central Government
through Regional Director. Citations were also directed
to be published in „Business Standard" (English) and
"Jansatta" (Hindi). Affidavit of Service and Publication
==================================================
has been filed by the Petitioner Companies showing
compliance regarding service of the Petition and also
regarding publication of citations in the aforesaid
newspapers. 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 notices issued, the Official
Liquidator sought information from the Petitioner
Companies. Based on the information received the
Official Liquidator has filed his report dated 18th 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 do not
appear to have been conducted in a manner prejudicial
to the interest of its members, creditors or to public as
per 2nd 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
17 th July, 2014. Relying on Clause 9.1 of Part-
II of the Scheme, he has stated that all the emp loyees of
the Transferor Companies shall become the employees
==================================================
of the Transferee Company without any break or
interruption in their services upon sanctioni ng of the
Scheme by the Court.
11. Further, the Regional Director, in Para No. 4 of the said
Affidavit has observed that M/s Cellnext Solutions
Limited, M/s Gingersoft Media Private Limited
(Transferor Company No. 1 & 2) and M/s ValueFirst
Digital Media Private Limited (Transferee Company)
are registered as Telemarketer for Telemarketing
activity with the Telecom Regulatory Authority of
India (TRAI). It is submitted that the Transferee
Company may be directed to obtain the necessary
approvals from the Ministry of Telecommunications for
the Scheme of Amalgamation pursuant to the Ministry
of Telecommunications letter No. 820-1/2003-LR dated
09.06.2003, in which the Ministry of
Telecommunications has clarified that the licensee may
transfer the license with prior written approval of the
licensor, even in the cases of Scheme of Amalgamation
under section 391/394 of the Companies Act, 1956 .
12. In reply to the aforesaid observation of the Learned
Regional Director, the Petitioner Companies have filed
a rejoinder affidavit dated 19 th July, 2014 by Mr.
==================================================
Vishwadeep Bajaj, Authorized Signatory of Petitioner
Companies, stating that Transferor Company No.1,
Transferor Company No.3 and Transferee Company are
registered as Telemarketer with Telecom Regulatory
Authority of India and Petitioner No.2 is not a
Telemarketer registered with TRAI. The Telemarketer
registration of Transferor Company No. 1 and 3 is not
proposed to be transferred to Transferee Company
pursuant to the amalgamation. Further, post-facto
intimation pursuant to approval of the Scheme by this
Hon‟ble High Court shall also be provided to TRAI and
since none of the Petitioner Companies are holding any
license issued by TRAI, therefore the prior approval
from the Ministry of Telecommunications pursuant to
its letter No. 820-1/2003-LR would not be required.
13. Further, the Regional Director, in Para No. 5 has also
observed that the Petitioner Transferor Company No. 1
and 2 and Transferee Company may be asked to give
an undertaking for all compliances from Reserve Bank
of India as required under FEMA for above transaction
involving Foreign Banks/entities, if deemed fit and
proper by the Hon'ble Court.
14. In reply to the above said observation, Petitioner
==================================================
Companies have filed a rejoinder affidavit dated
19.07.2014 stating that pursuant to the proposed
Scheme, no shares will be issued to any foreigner,
foreign entity or any person, resident outside India, so
there is no requirement of any compliances from the
Reserve Bank of India under FEMA. However, it is
clarified that the Petitioners shall comply with all the
statutory requirements of FEMA and any
permission/sanction, if required under FEMA shall be
duly obtained.
15. Further, the Regional Director, has observed that vide
letter dated 8th July, 2014 the Income Tax Department
had sought further documents/information from the
Petitioner Companies and the Petitioner Companies
may be asked to give an undertaking that they will
furnish the desired information/ documents sought by
the Income Tax Department in regard to pending
investigation and comments from the Income Tax
Department, if deemed fit and proper by this Hon‟ble
High Court.
16. The learned Counsel for the Petitioner Companies
states that requisite information was furnished by the
Petitioner Companies to the Income Tax authorities on
==================================================
16.7.2014. Thereafter by order dated 22.7.2014 on the
request of the Assistant Registrar of Companies, the
matter was adjourned by 15 days to await the response,
if any, of the Income Tax Department. Assistant
Registrar of Companies submits that no further
information has been received from the Income Tax
Department objecting to the scheme.
17. The learned counsel for the P etitioner Companies on
behalf of the Petitioner Companies undertakes that the
Transferee Company shall continue to be liable for any
income tax liability of any of the Transferor C ompany
with respect to the sanction of the scheme.
18. Further, it has been duly submitted that there are no tax
dues of Transferor Companies and in case any tax dues
arise is future the Transferee Company shall be liable
to discharge the same. Further, it has been specifically
provided in the Scheme that all tax liabilities, legal
proceedings (pending or arising), all debts, liabilities
(including contingent liabilities), duties and obligations
of every kind, nature and description of the Transferor
Companies shall be transferred to and deemed to be
that of the Transferee Company and shall continue and
be payable, enforced by or against the Transferee
==================================================
Company.
19. Another concern raised by the Regional Director is that
Transferee Company shall not claim any carr y forward
losses of any of the Transferor C ompanies.
20. Learned counsel for the Petitioner Companies submits
that Petitioner Companies also undertakes that the
Transferee Company shall not claim any benefit of
carry forward losses of any of the Transferor
Companies.
21. In view of aforesaid clarification and undertaking given
by the petitioners, the concern of the Regional Director
has been duly addressed.
22. No objection has been received to the Scheme from any
other party. Mr. Vishwadeep Bajaj, Authorized
Signatory of the Petitioner Companies, has filed an
Affidavit dated 19 th July 2014, confirming that neither
the Petitioner Companies nor its Counsel has received
any objection pursuant to citations published in the
newspapers.
23. 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.
24. 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
are transferred to the Transferee Company without any
further act or deed. Upon the Scheme coming into
effect, the Transferor Companies shall stand dissolved
without winding up.
25. 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 payabl e,
in accordance with any law; or permission/compliance
with any other requirement which may be specifically
required under any law.
26. The Learned Counsel for the Petitioner submits that the
Petitioner Companies (collectively) would vol untarily
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.
27. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
AUGUST 11, 2014
==================================================
