Delhi High Court
Bagrrys Overseas Pvt Ltd. vs ........... on 28 August, 2014
Author: Sanjeev Sachdeva
$~15
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 122/2014
IN THE MATTER OF
BAGRRYS OVERSEAS PVT LTD . ..... Petitioners
Through: Mr. Rajeev K Goel, Advocate for
the Petitioner.
Mr. Atma Sah, 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
% 28.08.2014
SANJEEV SACHDEVA, J (ORAL)
1. This second motion joint petition has been filed under
Sections 391 & 394 of the Companies Act, 1956
("Act") seeking sanction of the Scheme of
Amalgamation ("Scheme") of Bagrrys Overseas Pvt
Ltd (hereinafter referred to as Transferor Company No.
1), Sunview Commercial Pvt Ltd (hereinafter referred
to as Transferor Company N o.2) and Oasis Financial
Services Pvt Ltd (hereinafter referred to as Transferor
Company No.3) with Oasis Securities Pvt Ltd.
==================================================
(hereinafter referred to as Transferee Company)
(collectively referred to as 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 authorized, issued,
subscribed and paid up capital have been given in the
Petition.
4. The copies of the Memorandum and Articles of
Association as well as the Annual Accounts along with
the Audited Balance Sheet for the year ended 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
Director of the Petitioner Companies approving the
Scheme of Amalgamation 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) 15
of 2014 seeking directions of this Court for
dispensation/convening of meetings. Vide Order dated
21 st January, 2014, this Court allowed the Application
and requirement of convening all the meetings of
Shareholders of the Transferor Companies and the
Transferee Company were dispensed with. None of the
Transferor Companies and the Transferee Company has
any Secured and Un-secured Creditors.
8. The Petitioner Companies had thereafter filed the
present Petition seeking sanction to the Scheme of
Amalgamation, Vide Order dated 21st February, 2014,
notice of the Petition was directed to be issued to the
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 newspapers.
Copies of the newspaper cuttings 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 20 th May, 2014,
wherein he has stated that he has not received any
complaint against the proposed Scheme fro m 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
of its members, creditors or to public interest of its
members, creditors or to public interest as per the 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
7th August, 2014. Relying on the Scheme of
Amalgamation, he has stated that, upon sanction of the
Scheme, all the employees of the Transferor
Companies shall become the employees of the
Transferee Company without any break or interr uption
in their services. Further, the learned Regional Director
submits that despite notice, the Income Tax Authorities
have not raised any objection with regard to the
Scheme.
11. The learned Regional Director in his Affidavit has
raised concerns that the Transferee Company is a Non
Banking Finance Company (NBFC) and registered with
the Reserve Bank of India. In terms of the RBI circular
dated 26th May, 2014, prior approval of the RBI is
required for amalgamation of any NBFC.
12. In response to the aforesaid observations, the Petitioner
Companies in their Reply Affidavit dated 23 rd August,
2014 has submitted that in terms of the RBI circular
No. DNBS (PD) CC.No. 376/03.10.001/2013-14 dated
==================================================
26 th May, 2014, prior approval of the RBI is required
for every Scheme of Amalgamation of an NBFC. The
aforesaid circular clearly provides that prior approval
of the RBI has to be obtained before approaching the
High Court under sections 391 and 394 of the
Companies Act, 1956. Mr. Rajeev Goel, Counsel for
the Petitioners, informed that the present Scheme has
been filed in this Court by way of first motion joint
Application on 16 th January, 2014 and second motion
joint Petition on 13 th February, 2014, which was much
before the date of the aforesaid RBI Circular. Mr. Goel
submits that a close reading of the aforesaid RBI
circular clearly implies that it would be applicable for
the amalgamation cases which would be filed in the
High Court after the date of the Circular, i.e., 26 th May,
2014. He has relied on the decision dated 06.08.2014 of
this court in C.P. No. 201 of 2014 bearing title M/s
Splendid Builders Private Limited to contend that the
RBI has clarified by reply dated 14 th July, 2014 to an
RTI query that all the Schemes of
Merger/amalgamation/takeover/acquisition initiated
post the date of issue of the circular would require prior
==================================================
RBI approval and that the RBI further cleared that this
circular will not have any retrospective Effect.
13. The learned Regional Director in his Affidavit submits
that the Registrar of Companies, Delhi has reported that
all the Transferor and Transferee Companies are
closely held unlisted-companies. There is no mention
as to whether these companies are registered with RBI
as NBFC, and if they are then, these companies have
obtained no objection from the RBI with regard to the
proposed Scheme of A malgamation.
14. In response to the aforesaid observation, Petitioners
have further confirmed that none of the Transferor
Companies are registered with the RBI as NBFC. The
Petitioner Transferee Company has undertaking and
confirmed that it will comply with all the compliances
of the Reserve Bank of India and will take other
necessary steps in this regard, if any. Further, the
Petitioner Companies and their Directors have also
given an undertaking 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 Petiti oner
Companies with regard to NBFC regulations.
==================================================
15. In view of the aforesaid clarification and undertaking
given by the Petitioner, the concern of the Regional
Director has been duly addressed.
16. It is directed that in case it is found that the Transferee
Company has violated any provision of the Reserve
Bank of India Act then the 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 Sche me.
17. No objection has been received to the Scheme of
Amalgamation from any other party. Mr. Laxmi
Narayan Mundhra, 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.
18. 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.
19. 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
coming into effect, the Transferor Companies shall
stand dissolved without winding up.
20. 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.
21. The Petitioner Companies (collectively) would
voluntarily deposit a sum of Rs. 75,000/- in the
Common Pool fund of the Official Liquidator within
three weeks from today. The said statement is accepted.
22. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
AUGUST 28, 2014
==================================================
