Delhi High Court
Malav Holdings Private Limtied & ... vs ............ on 15 December, 2014
Author: Sanjeev Sachdeva
$~22
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 652/2013
IN THE MATTER OF
MALAV HOLDINGS PRIVATE LIMTIED & ORS.
.....Petitioner
Through: Mr. Mahesh Agarwal and Mr.
Rajeev Kumar, Advocates for the
Petitioners.
Mr. Atma Sah, Assistant
Registrar of Companies for the
Regional Director.
Mr. Rajiv Behl, Advocate for the
Official Liquidator.
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 15.12.2014
SANJEEV SACHDEVA, J (ORAL)
1. This second motion petition has been filed under
sections 391 & 394 of the Companies Act, 1956 ("Act")
seeking sanction of the Scheme of Amalgamation
("Scheme") of Malav Holdings Private Limited
(hereinafter referred to as Transferor Company No. 1),
Shivi Holdings Private Limited (hereinafter referred to
as Transferor Company No. 2), RHC Healthcare
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Management Services Private Limited (hereinafter
referred to as Transferor Company No. 3) and Todays
Holdings Private Limited (hereinafter referred to as
Transferor Company No. 4) (hereinafter Transferor
Company No. 1 - 4 collectively referred to as
Transferor Companies) with RHC Holding Private
Limited (hereinafter referred to as the Transferee
Company) (hereinafter collectively referred to 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
Hon‟ble Court.
3. Details with regard to the date of incorporation of the
Petitioner Companies, their authorized, issued,
subscribed and paid up capital have been given in the
Petition.
4. Copies of the Memorandum and Articles of Association
as well as the latest audited Accounts for the year
ending 31st March 2013 of Petitioner Companies have
also been enclosed with the Petition.
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5. Copies of the Resolutions passed by the Board of
Directors of the Petitioner Companies approving the
Scheme of Amalgamation have also been placed on
record.
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 an
Application CA (M) No. 142 of 2013 seeking directions
of this Court for dispensation/convening of meetings.
Vide order dated 22.10.2013, this Court allowed the
abovesaid application and dispensed with the
requirement of convening meetings of Equity
Shareholders of Petitioner Companies, Preference
Shareholders of Transferor Company No. 1 and
Transferor Company No. 2, Unsecured Creditors of the
Transferor Company No. 1, Transferor Company 2 and
Transferor Company No. 3 and Secured Creditors of
Transferor Company 4. Transferor Company No. 1,
Transferor Company No. 2 and Transferor Company
No. 3 had no Secured Creditors and Transferor
Company No. 4 had no Unsecured Creditors. This Court
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further directed to convene the meeting of the Secured
Creditors and Unsecured Creditors of the Transferee
Company. Pursuant to the direction of this Court
meeting of the Secured Creditors and Unsecured
Creditors of the Transferee Company were convened on
30th November 2013. The chairpersons appointed in the
said meeting submitted their report whereby it has been
stated that the proposed scheme was approved by the
Secured Creditors and the Unsecured Creditors of the
Transferee Company with the requisite majority.
8. The Petitioner Companies have thereafter filed the
present Petition seeking sanction of the Scheme of
Amalgamation. Vide order dated 11.12.2013, notice of
the Petition was directed to be issued to the Registrar of
Companies, Central Government and Official
Liquidator. Citations were also directed to be published
in „Business Standard‟ (English and Hindi). Affidavit of
Service and Publication dated 06.02.2014 has been filed
by the Petitioner Companies showing compliance
regarding service of the Petition and also regarding
publication of citations in the aforesaid newspapers on
24.12.2013. Copies of the newspaper cuttings, in
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original, containing the publications have also been filed
along with the Affidavit of Service.
9. In response to the notice issued on the Petition, the
Official Liquidator has filed Report dated 26.03.2014. It
has been stated that the Official Liquidator has not
received any complaint against the proposed Scheme of
Amalgamation. It has further been stated in the Report
that the affairs of the Petitioner Companies do not
appear to have been conducted in a manner prejudicial
to the interest of its members or to public interest as per
the 2nd proviso of Section 394 (1) of the Act.
10. In response to the notices issued, the Regional Director
has filed his Affidavit dated 25.03.2014. Relying on
Clause 4.8 of Part-B and on Clause 11.81 of Part-C of
the Scheme of Amalgamation he has stated in Para No.
3 that all the staff/employees of the Transferor Company
No. 1 & 2 shall become the employees of the Transferee
Company/Amalgamating Company and that all the
staff/employees of the Amalgamating Company No. 1 &
2 shall become the employees of the Amalgamated
Company without any break or interruption in their
services upon sanctioning the Scheme. Further it
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submits that despite notice, Income Tax Authorities has
not raised any observation with respect of the Scheme.
11. Further, the learned Regional Director, in Para No. 5 of
the said Affidavit has observed that Todays Holdings
Pvt. Ltd. (Transferor Company No. 2) and M/s RHC
Holdings Pvt. Ltd. (Transferee Company) are Non-
Banking Finance Companies (NBFC) and registered
with the Reserve Bank of India. It has been submitted
that both the Petitioner Companies may be asked to give
an undertaking for all compliances from Reserve Bank
of India being concerned Regulator, if deemed fit and
proper by the Hon‟ble Court.
12. In response to above said observation, Ms. Gunjan
Singh, Authorized Signatory of Petitioner Companies
has filed an Affidavit dated 27.03.2014 giving
undertaking that that both the Transferor Company No.
2 and Transferee Company shall comply with all
compliances as prescribed by the Reserve Bank of India,
wherever applicable.
13. Further, the learned Regional Director submits that there
are some issues regarding the Appointed Date on which
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the Scheme is based on and requests this Hon‟ble Court
to shift the Appointed Date accordingly.
14. In response to the above contention, learned Counsel for
the Petitioner Companies submits and undertakes that
the Appointed Date may be shifted to 1 st January 2015
and further relies on the order of this Hon‟ble Court in
CO.PET 36 of 2014 dated 26th March 2014 in the matter
of Exclusive Leasing Finance Ltd. And Ors, wherein a
similar observation was raised by the Regional Director
and the undertaking given by the Petitioner Companies
was accepted by this Court. The relevant extract of the
said order is as below:
"8. Mr. Atma Sah, Asstt. ROC has pointed out
that the appointed date as per the scheme is
the effective date i.e. the date on which the
formal order would be filed with the Registrar
of Companies. It is submitted that this entails
a practical difficulty inasmuch as the schedule
of assets are required to be included as a part
of the formal order as per the Companies
(Court) Rules, 1959. The learned counsel for
the petitioner states that there is no objection
if a date proximate to sanction of the scheme
is fixed as the appointed date. Accordingly,
01.04.2014 is fixed as the appointed date. In
view of this, the observation made by
the Regional Director stands addressed.
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9. The Counsel of the Petitioner Companies
undertakes that the status of the assets and
liabilities of the petitioner Companies to be
transferee pursuant to the scheme of the
Agreement shall be the assets and liabilities
as on date and no change to the same will be
effected until the appointed date which is as
defined in the Scheme of the Arrangement."
15. Learned Counsel for the Petitioner Companies
undertakes that the status of the assets and liabilities of
the petitioner Companies to be transferee pursuant to the
scheme of the Agreement shall be the assets
and liabilities as on date and no change to the same will
be effected until the appointed date which is as defined
in the Scheme of the Arrangement.
16. In view of the aforesaid law which has been laid down
by this Court and the clarification & undertaking given
by the Petitioner Companies, the concerns of the
Regional Director have been duly addressed.
17. No objection has been received to the Scheme of
Arrangement from any other party. Ms. Gunjan Singh,
Authorized Signatory of the Petitioner Companies, has
filed an Affidavit on 26.03.2014, confirming that neither
the Petitioner Companies nor their Counsel has received
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any objection pursuant to citations published in the
newspapers.
18. In view of the approval accorded by the shareholders of
the Petitioner Company, Representation/Report filed by
the Official Liquidator and the Regional Director,
Northern Region and the submissions of the Petitioner
Companies, 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 391-394 of the
Companies Act, 1956. The Petitioner Companies will
comply with the statutory requirements in accordance
with law.
19. Certified copy of the 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, and in terms of the
Scheme, the whole or part of the undertaking, 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, in
terms of the Scheme, all the liabilities and duties of the
Transferor Companies be transferred to the Transferee
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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 taxes 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. Learned Counsel for the Petitioner states that the
Petitioner Companies (collectively) would voluntarily
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.
22. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
DECEMBER 15, 2014
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