Delhi High Court
Inter Globe Aviation Limited vs ............ on 22 December, 2014
$~20
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 599/2014
IN THE MATTER OF
INTER GLOBE AVIATION LIMITED .....Petitioner
Through: Mr. Sanjeev Puri, Sr. Adv. and
Mr. Manpreet Lamba, Advocates
for the Petitioner Company.
Mr. Atma Sah, Assistant
Registrar of Companies for the
Regional Director.
Mr. Rajpal Singh, Deputy
Official Liquidator.
CORA M:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 22.12.2014
SANJEEV SACHDEVA, J (ORAL)
C.A No. 3052/2014 (application on behalf of the
Regional Director)
This is an application on behalf of the Regional
Director seeking condonation of delay in filing the
report.
Learned Senior Counsel for the petitioner, under
instructions, submits that the petitioner has no
objection if the delay is condoned.
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In view of the above, application is allowed and
the delay is condoned.
The report is directed to be taken on record.
CO.PET. 599/2014
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 Caelum Investment LLC
(hereinafter referred to as Transferor Company) with
Inter Globe Aviation Limited (hereinafter referred to as
the Petitioner/Transferee Company) (hereinafter
collectively referred to as Petitioner Company). A copy
of the Scheme has been enclosed with the Petition.
2. The registered office of the Petitioner/Transferee
Company is situated at New Delhi, within the
jurisdiction of this Hon'ble Court. The principal place
of business of the Transferor Company is situated in
United States, outside the jurisdiction of this Hon'ble
Court.
3. Details with regard to the date of incorporation of the
Petitioner Company, their authorized, issued,
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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 as at
31st March, 2014 of the Petitioner Company have also
been enclosed with the Petition.
5. Copies of the Resolution 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 in accordance with the applicable laws of
Delaware, USA, the members of the Transferor
Company have by way of a certificate dated 28 th April
2014 authorized the Managing Member to take all
decisions concerning the Transferor Company,
including the Scheme and in this regard, the Managing
Member of the Transferor Company has approved the
Scheme on behalf of the members of the Transferor
Company. Copy of the aforesaid certificate dated April
28, 2014 pursuant to which the Transferor Company
has approved the Scheme has also been enclosed.
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7. Learned Counsel for the Petitioner Company submits
that no proceedings under Sections 235 to 251 of the
Companies Act, 1956 is pending against the Petitioner
Company.
8. The Petitioner Company had earlier filed C.A (M) 107
of 2014 seeking directions of this Court for convening
of meetings of its Shareholders (equity and preference),
Secured Creditors and Unsecured Creditors. Vide
orders dated 04.07.2014 and 01.08.2014 respectively,
this Court allowed the application and directed the
convening of the meetings of the Equity Shareholders,
Preference Shareholder, Secured Creditors and
Unsecured Creditors of the Petitioner Company. The
Chairpersons have given their report in which the
Scheme was unanimously approved by the
Shareholders, Secured Creditors and Unsecured
Creditors.
9. The Petitioner Company had thereafter filed the present
Petition seeking sanction to the Scheme. Vide order
dated 1st October 2014, notice of the Petition was
directed to be issued to the Central Government
through the Regional Director, Northern Region,
Ministry of Corporate Affairs. Citations were also
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directed to be published in the "Statesm an" (English)
and "Jansatta" (Hindi). The Affidavit of Service of the
publication has been filed on behalf of the Petitioner
Company on 24 th November, 2014, showing
compliance regarding publication of citations in the
aforesaid newspapers. Copies of the newspaper
cuttings, in original, containing the publications have
also been enclosed.
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
5th December, 2014. Relying on the Scheme of
Amalgamation, he has stated that, upon sanction of the
Scheme as per clause 5.1 of Part-II of the Scheme that
as on the effective date, the employees of the
Transferor Company shall be deemed to have become
the employees of the Transferee Company shall be on
the terms and conditions of service applicable to the
employees shall not be less favourable than those
applicable to them as on the effective date. It has also
been stated that by the Regional Director that despite
notice, the Income Tax Authorities have not raised any
objection with regard to the Scheme.
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11. Learned Regional Director in paragraph 13 of his
Affidavit has observed that the Petitioner Company
comes under the purview of the Directorate General of
Civil Aviation (DGCA) and therefore the Petitioner
Company may be directed to obtain the prior approval
of the Directorate General of Civil Aviati on (DGCA),
before the Scheme is approved.
12. In response to the above observation, the Petitioner
Company in the Reply Affidavit dated 6th December,
2014, has submitted that the Foreign Investment
Promotion Board (FIPB) has given its approval to the
Scheme and the amalgamation vide its letter dated 10 th
September 2014 and the Competition Commission of
India (CCI) has also separately gave its approval to the
Scheme vide its order dated 30 th July 2014. Further, the
Petitioner Company by a subsequent affidavit dated 9th
December 2014 has undertaken to comply with the
requirements of the DGCA, if any, as may be
prescribed in law.
13. Further, the learned Regional Director in paragraph 14
his Affidavit has observed that the Petitioner Company
have furnished the details of interest of foreign/non -
resident shareholders in the Petitioner Company and
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hence the Petitioner Company may be directed to give
an undertaking for necessary compliance from Reserve
Bank of India as required under FEMA, before the
Scheme is allowed.
14. In response to the above observation, the Petitioner
Company in the Reply Affidavit dated 6 th December,
2014 has undertaken to comply with all applicable
compliances required under the Foreign Exchange
Management Act, 1999 (FEMA) and the rules,
regulations and guidelines issued there under as may be
prescribed by the Reserve Bank of India, from time to
time in this regard.
15. In view of the above said clarification and undertaking
the concern raised by the learned Regional Director has
been duly addressed.
16. The Counsel for the Petitioner Company submits that
no objection has been received to the Scheme from any
other party and that neither he nor the client has
received any objection pursuant to the citations
published in the newspapers.
17. In view of the approval accorded by the shareholders
and creditors (secured and unsecured) of the Petitioner
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Company; affidavit/report filed by the Regional
Director, to the proposed Scheme, there appears to be
no impediment to the grant of sanction to the Scheme.
Consequently, sanction is hereby granted to the Scheme
under sections 391 and 394 of the Companies Act,
1956. The Petitioner Company 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 Act, all the property, rights
and powers of the Transferor Company be transf erred
to and vest in the Transferee Company without any
further act or deed. Similarly, all the liabilities and
duties of the Transferor Company be transferred to the
Transferee Company without any further act or deed.
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 Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
DECEMBER 22, 2014
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