Delhi High Court
Pee Aar Automotive Pvt. Ltd vs ............ on 22 December, 2014
$~17
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 456/2014
IN THE MATTER OF
PEE AAR AUTOMOTIVE PVT. LTD .....Petitioners
Through: Mr. Kapil Rustagi and Ms.
Ankita Jadhav, Advocates for the
Petitioners.
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)
1. This second motion petition has been filed under
sections 391 & 394 of the Companies Act, 1956
("Act") seeking sanction of the Scheme of
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Amalgamation ("Scheme") of M/s Pee Aar Automotive
Pvt. Ltd (hereinafter referred to as Transferor
Company) with Pasio Aircon Pvt. Ltd (hereinafter
referred to as the Transferee Company) (hereinafter
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
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 31 st March 2013 of the Petitioner
Companies have also been enclosed with the Petition.
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.
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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
Company.
7. The Petitioners Companies had earlier filed C.A (M)
No. 106 of 2014 seeking directions of this Court for
dispensation/convening of meetings. By order dated
29.05.2014, this Court allowed the application and
dispensed with the requirement of convening meetings
of Shareholders, Secured and Unsecured Creditors of
the Transferee Company and also dispensed the
meeting of Unsecured Creditors and Shareholders of
the Transferor Company. The meeting of the Secured
Creditors of the Transferor Company was convened on
12.07.2014 under the supervis ion of this Hon‟ble
Court. The Chairman has filed their report in which the
Scheme was unanimously approved.
8. The Petitioner Companies had thereafter filed the
present Petition seeking sanction to the Scheme of
Amalgamation. Vide order dated 28.07. 2014, notice of
the Petition was directed to be issued to the Regional
Director, Northern Region, Ministry of Corporate
Affairs, Noida and the Official Liquidator attached
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with this Court. Citations were also directed to be
published in „Business Standard‟ (English, Delhi
Edition) and „Jansatta‟ (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 newspaper.
Copies of the newspaper cuttings, in original,
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, l earned Official
Liquidator has filed his report dated 13 th November,
2014, wherein he has stated that he has not received
any complaint against the proposed S cheme from any
person/party interested in the Scheme in any manner
and that the affairs of the Transferor Company, which
is 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 as per the
2nd proviso of Section 394(1) of the Act.
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10. Further learned Official Liquidator in his report has
observed that Share Valuation Report for the proposed
amalgamation prepared by M/S H. S. Rustagi & Co.
Charted Accountants is dated as 24.01.2014. However,
the Board of Directors in the Petitioner Companies
approved the merger in their respective meetings on
31.10.2013. On this basis it was submitted that boards
have not approved the Scheme of Amalgam ation
subsequent to the Valuation of shares and the Petitioner
companies may be asked to clarify the same as the
modalities procedure followed by them appears to be
improper.
11. In response to the above observation, the Petitioner
Companies had filed a Response Affidavit dated
16.12.2014 and it was submitted that both the
Petitioner Companies i.e M/s Pee Aar Automotive
Technologies Pvt. Ltd. and M/s Pasio Aircon Pvt. Ltd.
had share valuation certificates dated 23.10.2013 and
16.10.2013 respectively addressed to the Board of
directors, issued by H.S. Rustagi & Co. Charte red
Accountants. The Petitioner Companies had the share
exchange ratio before them while the Scheme of
amalgamation was under consideration. It was after the
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perusal of the aforesaid certificates dated 23.10.2013
and 16.10.2014, the board resolution dated 31.10.2013
was passed. It is further submit ted that the Petitioners
Companies were under the bonafide impression that for
the purpose of court proceedings, a separate certificate
would be required and it is in this background a
separate certificate dated 24.01.2014 was issued by
H.S. Rustagi, Chartered Accountants which was
addressed to "whomsoever it may concern". It is in this
background, it was submitted that there is no
procedural infirmities as observed. Moreover, there is
no substantive difference in the conclusion arrived at
by the Charted Accountants. The copies of both the
certificates dated 23.10.2013 and 16.10.2013 issued to
the both the Petitioner Companies is placed on record .
12. In response to the notice issued in the Petition, learned
Regional Director, Northern Region, Ministry of
Corporate Affairs has filed his Affidavit/Report dated
2nd December, 2014. Relying on the Scheme of
Amalgamation, he has stated that, upon sanction of the
Scheme, all the employees of the Transferor Company
in service on the date immediately preceding the date
on which the Scheme finally takes effect i.e., the
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effective date, shall become the employees of the
Transferee Company without any break or inte rruption
in their services and upon terms and conditions not less
favourable than those subsisting in the Transferor
Company on the said date. Further Learned Regional
Director submits that despite of notice, Income Tax
Authorities has not raised any observation with regard
to the Scheme.
13. Further, learned Regional Director in his affidavit has
observed that there is a foreign shareholder in both the
Petitioner Companies namely Kai Tong Siow of
Singapore holding 24.14% of Transferor Company
shares and 22.61 % holding of Transferee Company.
And in this background, it was submitted that the
Petitioner may be asked to give an undertaking for
necessary compliance from Reserve Bank of India as
required under FEMA before scheme is allowed by the
Hon‟ble Court.
14. In response to the above observation, the Petitioner
Transferee Company in the Reply Affidavit has
submitted that Petitioner Companies undertake to
follow necessary compliances in accordance with
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applicable law from Reserve Bank of India as required
under FEMA.
15. Further, learned Regional Director in his affidavit has
observed that the Registrar of Companies vide Para 31
of his report dated 11.11.2014 has stated that Para 4.7
of the proposed scheme states that upon coming in to
effect of the scheme, the name of the Transferee
Company shall without any further act or deed assume
the name of the Transferor and act under new name and
ROC shall issue a new certificate of incorporation.
Hence, it was observed that the Petitioner Company
may be advised to comply wit h the relevant provisions
of the Companies Act, 2013 before the change of name
of Transferee Company.
16. In response to the above observation, the Petitioner
Transferee Company in the Reply Affidavit has
submitted that Petitioner Companies undertake to
comply with all relevant provisions of the Companies
Act, 2013 and any other applicable law with regard to
the change of name of the Transferee Company .
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17. In view of the above said clarifications and
undertakings the concerns raised by the learned
Regional Director have been duly addressed.
18. No objection has been received to the Scheme of
Arrangement from any other party. Mr. Sanjeev Kumar
Negi, authorized signatory for the Petitioner
Companies, has filed an affidavit dated 12.12.2014
confirming that neither the Petitioner Companies nor its
counsel has received any objection pursuant to the
citations published in the newspapers.
19. 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.
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20. 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
Company be transferred 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. Upon the Scheme coming into
effect, the Transferor C ompany shall stand dissolved
without winding up.
21. 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/complian ce
with any other requirement which may be specifically
required under any law.
22. 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.
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23. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
DECEMBER 22, 2014/sv
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