Delhi High Court
Adinath Food Private Limited vs ............ on 15 December, 2014
Author: Sanjeev Sachdeva
$~21
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 617/2013
IN THE MATTER OF
ADINATH FOOD PRIVATE LIMITED .....Petitioner
Through: Mr. S.K.Srivastava, Advocate for
the Petitioner.
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 Adinath Food Private Limited
(hereinafter referred to as Petitioner/Transferor
Company) with ICMC Corporation Limited (hereinafter
referred to as the Transferee/Non-Petitioner Company).
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A copy of the Scheme has been enclosed with the
Petition.
2. The registered office of the Transferor Company is
situated at New Delhi, within the jurisdiction of this
Hon'ble Court. The registered office of the Transferee
Company is situated at Chennai which is outside the
jurisdiction of this Court.
3. Details with regard to the date of incorporation of the
Petitioner Company, 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 31 st March 2013 of the Petitioner Company have
also been enclosed with the Petition.
5. Copies of the Resolutions passed by the Board of
Directors of the Petitioner Company approving the
Scheme of Amalgamation have also been placed on
record.
6. Learned Counsel for the Petitioner Company submits
that no proceedings under Sections 235 to 251 of the
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Companies Act, 1956 is pending against the Petitioner
Company.
7. The Petitioner Company had earlier filed C.A (M) No.
122 of 2012 seeking directions of this Court for
dispensation of meetings. Vide order dated 07.08.2014,
this Court allowed the Application and dispensed with
the requirement of convening meetings of Equity
Shareholders, Secured Creditors and Unsecured
Creditors of the Petitioner Company.
8. The Petitioner Company has thereafter filed the present
Petition seeking sanction of the Scheme. Vide order
dated 07.08.2012, 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 'Times of India' (English) and 'Nav Bharat
Times' (Hindi). Affidavit of Service and Publication has
been filed by the Petitioner Company 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.
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9. In response to the notice issued on the Petition, the
Official Liquidator has filed Report dated 10.07.2014. 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 Company do not appear
to have been conducted in a manner prejudicial to the
interest of its members or to public interest as per the 2 nd
proviso of Section 394 (1) of the Act.
10. In response to the notice issued on the Petition, the
Regional Director has filed Representation Affidavit
dated 10.07.2014. Relying upon Clause 15 of the
Scheme, the Regional Director has stated that all
employees of the Transferor Company shall become the
employees of the Amalgamated Company. Further,
Regional Director submits that despite notice, Income
Tax Authorities have not raised any observation with
respect to the Scheme.
11. Further, learned Regional Director in his Affidavit has
observed that the Scheme is incomplete & vague and
liable to be dismissed on the grounds that there is no
dissolution clause of the Transferor/Petitioner Company
in the Scheme or in the Petition.
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12. In response to the above said observation, the Petitioner
Company has filed an Affidavit stating that this Hon'ble
court under section 394 of the Companies Act, 1956 can
order dissolution of the Transferor/Petitioner Company,
without following the process of winding up.
13. Further, learned Regional Director in his Affidavit has
observed that there is no mention whether the Petitioner
Company will comply with the Accounting Standard 14
issued by the Institute of Chartered Accountant of India.
It is submitted that the Company may be asked to
comply with/adopt accounting treatment at prescribed
under Accounting Standard 14 and also comply with the
provisions of Section 2 (43) of the Companies Act,
2013.
14. In response to the above said observation, the Petitioner
Companies have filed an Affidavit stating that the
Petitioner Companies undertake to comply with / adopt
accounting treatment at prescribed under Accounting
Standard 14 and also comply with the provisions of
Section 2 (43) of the Companies Act, 2013.
15. Further, learned Regional Director in his Affidavit has
observed that the Scheme provides that the Transferee
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Company allot "4 equity shares of Rs.10/- each credited
and fully paid up of the Transferee Company for every
five equity shares of Rs.10/- each to every shareholder
of the Transferor Company", on perusal of the valuation
report prepared by M/s. D. Sundra Vardhan Chartered
Accountant, it has been observed that the Chartered
Accountant has determined only the fair value of shares
of the transferor company. The fair value of the shares
of the transferee company has not been determined by
the Chartered Accountants. Further, Chartered
Accountants has not recommended any fair exchange
ratio, hence it is not clear as to how the share exchange
ratio has been determined and approved for the scheme
of Amalgamation.
16. In response to the above said observation, the Petitioner
Companies have filed an Affidavit stating that there are
no creditors, no debtors as the Petitioner Company does
not have any business and it has only rental income
from ICMC Corporation Limited, the Transferee
Company. It has also been submitted that it is not a
listed company and the share values had been
determined by a firm i.e. D. Sundra Vardhan Chartered
Accountant and for the Transferee Company M/s. ICMC
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Corporation Limited share value had been determined
by firm i.e. "A Ramchandran & Associates Chartered
Accountant" and valuation report of both the companies
are enclosed with said petition. Learned counsel for the
Petitioner submits that, share ratio of the both
companies have been arrived at 4:5. Further he submits
that the Petitioner Company has served copy of
valuation of shares on the Regional Director.
17. Further, learned Regional Director in his Affidavit has
observed that the appointed date as per the scheme shall
be 01.04.2011, whereas the companies have prepared
their balance sheet and profit and loss account for the
period 31.3.2013 and filed those balance sheets and
other returns under the Companies Act, 1956. Therefore,
the appointed date may be shifted to 01.04.2013 to
avoid any revision of balance sheet and profit and loss
account and other returns including tax returns for
earlier period.
18. In response to the above said observation, the Petitioner
Companies has filed an Affidavit stating that if the
Petitioner Company change this dates it has to move/
pass resolution of the each company again to seek
consent of the shareholders. Since already the Petitioner
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Company has circulated several documents in the
Taxation Department, therefore, the same date may not
be changed. Further, learned Counsel for the Petitioner
submits that Petitioner has no objection if the ROC and
Income Tax department are given liberty to examine the
accounts of the Transferor And Transferee Companies
prepared after the appointed date. Further it is submitted
that the scheme has already been sanctioned by the High
Court of Judicature at Madras in respect of the
transferee company vide order dated 27.09.2013 in
Company petition No. 176 of 2013.
19. It is clarified that the Registrar of Companies would be
at liberty to examine the returns and books of accounts
pertaining to the past periods irrespective of the sanction
of the scheme.
20. Further, it is clarified that the Income Tax Authorities
are at liberty to assess the income of the Transferor and
Transferee Companies for the Financial Year
01.04.2012 to 31.03.2013 irrespective of the sanction of
the Scheme and in case any tax liability arises, the
Transferee Company shall be liable to pay the same.
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21. Further it is clarified that, in case there is any necessity
of filing of any revised returns with the Income Tax or
any other Authority; the Petitioner Companies shall duly
file the same and pay the requisite fees as per law
22. In view of the above said undertaking and clarification,
the concerns raised by the Regional Director are duly
addressed.
23. No objection has been received to the Scheme of
Amalgamation from any other party, Mr. M. Kannan,
Director of the Petitioner Company has filed an affidavit
dated 12.11.2014 and 28.11.2014 confirming that
neither the petitioner companies nor their Legal Counsel
have received any objection pursuant to the citations
published in the Newspapers.
24. 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
Company, 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
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Companies Act, 1956. The Petitioner Company will
comply with the statutory requirements in accordance
with law.
25. 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 Company
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 Company be transferred to the Transferee
Company without any further act or deed. Upon the
Scheme coming into effect, the Transferor Company
shall stand dissolved without following the process of
winding up.
26. 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.
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27. Learned Counsel for the Petitioner states that the
Petitioner Company 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.
28. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
DECEMBER 15, 2014
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