Delhi High Court
Agmon Builders Private Limited & ... vs .......... on 14 August, 2014
Author: Sanjeev Sachdeva
$~14
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 292/2014
IN THE MATTER OF
AGMON BUILDERS PRIVATE LIMITED & ORS.
..... Petitioner
Through: Mr. Mukesh Sukhija, Advocate
for the Petitioners.
Mr. P.L Mailk, Deputy Registrar
of Compa nies for the Regional
Director.
Mr. Rajiv Behl Advocate for the
Official Liquidator.
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 14 .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
seeking sanction of the Scheme of Amalgamation of
M/s AGMON BUILDERS PRIVATE LIMITED
(Transferor Company No.1), COLOSSAL INFRA-
DEVELOPERS PRIVATE LIMITED (Transferor
Company No.2), FALCON PROJECTS PRIVATE
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LIMITED (Transferor C ompany No.3), FLORES
UNITECH WIRELESS PRIVATE LIMITED
(Transferor Company No.4), HIGH STRENGTH
INFRA-DEVELOPERS PRIVATE LIMITED
(Transferor Company No.5), HIGH VISION
HEALTHCARE PRIVATE LIMITED (Transferor
Company No.6), ILAM DEVELOPERS PRIVATE
LIMITED (Transferor Company No.7), MANDARIN
PROJECTS PRIVATE LIMITED (Transferor
Company No.8), PANICUM PROJECTS PRIVATE
LIMITED (Transferor Company No.9), SANKOO
DEVELOPERS PRIVATE LIMITED (Transferor
Company No.10), UNITECH ACORUS PROJECTS
PRIVATE LIMITED (Transferor Company No.11),
UNITECH INFRA-PROJECTS PRIVATE LIMITED
(Transferor Company No.12), UNITECH POWER
DISTRIBUTION PRIVATE LIMITED (Transferor
Company No.13), UNITECH POWER PRIVATE
LIMITED (Transferor Company No.14), UNITECH
POWER PROJECTS PRIVATE LIMITED (Transferor
Company No.15), UNITECH UNIVERSAL
DEVELOPERS PRIVATE LIMITED (Transferor
Company No.16), UNITECH UNIVERSAL HOTELS
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PRIVATE LIMITED (Transferor Company No.17),
UNITECH UNIVERSAL SIMPSON HOTELS
PRIVATE LIMITED (Transferor Company No. 18),
UNITECH VARANASI HI-TECH TOWNSHIP
LIMITED (Transferor Company No.19), VOLGA
REALTORS PRIVATE LIMITED (Transferor
Company No.20) and ZANSKAR PROJECTS
PRIVATE LIMITED (Transferor Company No.21),
with HAVELOCK INVESTMENTS LIMITED
(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 as well as the latest audited Accounts as at
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31 st March, 2013 of the Petitioner Companies have also
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 Compa nies 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) No.
62/2014 seeking directions of this Court for
dispensation/convening of meetings of Shareholders of
the Transferor Companies and the Transferee Company
and Unsecured Creditors of the Transferee Company.
Vide order dated April 16, 2014, this Court allowed the
Application and dispensed with the requirement of
convening meetings of Shareholders of the Transferor
Companies and Transferee Company & Unsecured
Creditors of Transferee Company. It is stated that none
of the Transferor Companies have any Unsecured
Creditors; therefore, there is no requirement of
convening the meeting of the Unsecured Creditors of
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the Transferor Companies. It is also stated that that
none of the Petitioner Companies have any Secured
Creditors, therefore, there is no requirement of
convening the meeting of the Secured Creditors of the
Petitioner Companies.
8. The Petitioner Transferor Companies and the
Transferee Company have thereafter filed the present
Petition seeking sanction of the Scheme of
Amalgamation. Vide order dated May 06, 2014, notice
in the Petition was directed to be issued to the Regional
Director, Northern Region, Registrar of Companies and
the Official Liquidator. Citations were also directed to
be published in the „Business Standard‟ (English
Edition) and „Business Standard‟ (Hindi 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, Registrar of Companies and the Official
Liquidator, and also regarding publication of citations
in the aforesaid newspaper on June 11, 2014. Copies of
the newspaper cuttings, in original, containing the
publications have been filed along with the Affidavit of
Service.
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9. In response to the notice issued, the Official Liquidator
sought information from the Petitioner Companies.
Based on the information received, the Official
Liquidator has filed his report dated 4th
August, 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 their 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, Mr.
A.K. Chaturvedi, Regional Director, Northern Region,
Ministry of Corporate Affairs has filed his Affidavit
dated 4th August, 2014. Relying on Clause 7 of the
Scheme of Amalgamation, he has stated that, upon
sanction of the Scheme of Amalgamation, all t he
employees of the Transferor Companies shall become
the employees of the Transferee Company without any
break or interruption in their services upon sanctioning
of the Scheme of A malgamation by the Hon‟ble Court.
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11. The Regional Director has stated that the Registrar of
Companies has reported that all Transferor Companies
are wholly owned Subsidiary companies of the
Transferee Company. 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 observation, the Petitioner
Companies has filed the affidavit stating that the
Transferee Company has made investments to the tune
of Rs.1,50,01,250/- as on 31.03.2013 in its subsidiary
companies, associates companies or group companies
and the Transferee Company is a Core Investment
Company, in terms of the Core Investment C ompanies
(Reserve Bank of India) Directions 2011. It is
contended that as per the guidelines of Reserve Bank of
India, there is no requirement for obtaining certificate
of Registration from Reserve Bank of India under
section 45-IA of the Reserve Bank of India Act, 1934.
It has further been contended that the Transferee
Company is not a Non-Banking Finance Company. It
further states that Transferee Company undertake to
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comply with the any directions of the Reserve Bank of
India.
13. In view of the above, the concern of the Regional
Director has been duly addressed. It is further directed
that in case it is found that the Transferee Company has
violated any provision of Reserve B ank of India Act
then Directors of the Transferee Company guilty of
breaching the applicable provisions of the Reserve
Bank of India Act shall continue to be liable
irrespective of the sanction of the Scheme.
14. The Regional Director further in his affidavit has stated
the following observation with regard to the Income
Tax Authorities as follows:-
"That the Deponent further craves leave to submit
that in compliance of the Ministry‟s Circular
No.1/2014 dated 15.01.2014, the Chief Income
Tax Commissioner, New Delhi vide letter dated
19.05.2014 was requested to examine the Scheme
of Amalgamation and submit their comments/
observation, if any within 15 days. A letter dated
15.07.2014 has received from the Income Tax
Officer, (Hq.), CIT-VI, New Delhi and they have
furnished the observations of the Income Tax
Officer, Ward 18(1), New Delhi. They have
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stated that M/s. Unitech Universal Hotels Pvt.
Ltd. M/s. Unitech Universal Simpson Hotels Pvt.
Ltd. and M/s. Unitech Varansai Hi -Tech
Township Ltd. are being assessed in his ward and
on examination of the Scheme, no direct adverse
impact on tax position could be noticed so far as
the Amalgamation of Transferor Companies in to
the Transferee Company is concerned.
The Income Tax Department has also stated that
other Transferor Companies and the Transferee
Company are not being assessed by him, as such,
the objections from the Assessing Officers of
those may also be obtained.
That the Deponent further craves leave to submit
that Income Tax Officer (Hqrs.), CIT -IV, New
Delhi vide letter dated 24.07.2014 has furnished
the observations of the Income Tax Officer, Ward
12(4), New Delhi in regard to merger of M/s.
High Strength Infra Developers Pvt. Ltd. and
stated that the consideration of
amalgamation/merger is prima facie reasonable.
That the Deponent further craves leave to submit
that Income Tax Officer (Hqrs.), CIT -IV, New
Delhi vide letter dated 24.07.2014 has furnis hed
the observations of the Income Tax Officer, Ward
12(4), New Delhi in regard to merger of M/s.
High Vision Healthcare Pvt. Ltd. and stated that
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the consideration of amalgamation/merger is
prima facie reasonable".
15. In view of the aforesaid clarifications and undertakings
given by the Petitioners, the concern of the Regional
Director has been duly addressed.
16. Learned Counsel for the Petitioner Companies submits
that no objection has been received to the Scheme of
Amalgamation from any other party. Mr. Rishi Dev and
Mr. Kuntal Kar, authorized signatory for all transferor
Companies and the Transferee Company respectively,
has filed an affidavit dated 1 s t August, 2014 confirming
that neither the Petitioner Companies nor the counsel
has received any objection pursuant to citations
published in the newspapers.
17. 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
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Companies Act, 1956. The Petitioner Companies will
comply with the statutory requirements in accordance
with law.
18. 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 Tra nsferee Company
without any further act or deed. Upon the Scheme
coming into effect, the Transferor Companies shall
stand dissolved without winding up.
19. 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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20. The Learned Counsel for the Petitioners Companies
submits that the Petitioner Companies (collectively)
would voluntarily deposit a sum of 1,00,000/ - in the
Common Pool fund of the Official Liquidator within
three weeks from today. The Statement is accepted.
21. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
AUGUST 14, 2014
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