Delhi High Court
Airwaves Telefilms Pvt Ltd & Ors. vs .......... on 15 July, 2014
Author: Sanjeev Sachdeva
$~21
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET.96 /2014
IN THE MATTER OF AIRWAVES TELEFILMS PVT LTD
& ORS. .........Petitioners
Through: Mr. Dilip Singh Advocate for
Petitioner companies,
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
% 15.07.2014
SANJEEV SACHDEVA, J (ORAL)
1. This second motion joint petition filed under Sections
391 to 394 of the Companies Act, 1956 („Act‟) seeking
sanction of the Scheme of A malgamation („Scheme‟)
of M/s Airwaves Telefilms Private Limited ( Transferor
Company No 1), M/s Lavitra Technologies Private
Limited (Transferor Company No 2 , M/s Suave
Technologies Private Limited (Transferor Company No
3) and Waves Telefilms Private Limited (Transferor
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Company No 4) with M/s Dolf Leasing Limited (the
Transferee Company) and their respective Shareholders
and Creditors, (Collectively hereinafter referred as
Petitioner Companies). A copy of the scheme has been
enclosed with the petition.
2. The registered offices of Transferor Company and the
Transferee Company are situated within the National
Capital Territory of Delhi and are within the
jurisdiction of this Court.
3. Details with regard to the date of incorporation of the
Transferor and Transferee Company, their authorized,
issued, subscribed and paid up capital have been set out
in the Petition.
4. Copies of the Memorandum and Articles of
Association as well as the latest audited Annual
Accounts for the year ended 31 st March, 2011 as well
as year ended 31 st March 2012 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
Companies.
7. The Petitioner C ompanies had earlier filed CA (M) No.
20 of 2014 seeking directions of this Court for
dispensation/convening of meetings vide order dated
28.01.2014, this Court allowed the Application and
requirement of convening all the meetings of
shareholders and Un- secured Creditors of the
Transferor Companies and the Transferee Company
were dispensed with. None of the Applicant Transferor
Companies and the Transferee Company had any
secured Creditors.
8. The Petitioner Companies had thereafter filed the
present Petition seeking sanction of the Scheme. By an
order dated 07.02.2014, notice of the Petition was
directed to be issued to the Regional Director, Northern
Region and the Official Liquidator attached with this
Court, Citations were also directed to be published in
"Statesman" (English) and Jansatta (Hindi). An
affidavit of service and publication has been filed by
the Petitioners showing compliance regarding service
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of the Petition on the Regional Director, Northern
Region and the Official Liquidator and also regard ing
publication of citations in the aforesaid newspapers on
29 th March, 2014. Copies of the newspaper cuttings, in
original, containing the publications have been filed
along with the Affidavit of Service.
9. In response to the notices issued, the Official
Liquidator sought information from the Petitioner
Companies. Based on the information received, the
Official Liquidator has filed his report dated
22.05.2014 wherein he has stated that he has not
received any complaint against the proposed Scheme
from any person/party interested in the Scheme in any
manner and that the affairs of the Transferor Company
do not appear to have been conducted in a manner
prejudicial to the interest of its members, creditors or to
public interest as per 2 nd proviso of section 394(1) of
the Act.
10. In response to the notices issued in the Petition, learned
Regional Director, Northern Region, Ministry of
Corporate Affairs has filed his Affidavit dated
21.05.2014 stating some observations in paragraph 4
and 5 as follows :-
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"4 .M/s Dolf Leasing Limited (Transferee
Company) is a Non Banking Finance
Company (NBFC) and registered with the
Reserve Bank of India. It is submitted that
the Petitioner Transferee Company may be
asked to give an undertaking for all
compliances from Reserve Bank of India
being concerned Regulator, if deemed fit &
proper by the Hon‟ble Court.
5. That the Deponent further craves leave to
submit that the Petitioner Company has
submitted two set of copy of scheme of
Amalgamation in the office of Deponent.
One set of Scheme of Amalgamation
submitted along with copy of Company
Application No. 20 of 2014, wherein at Para
5.6 of the Scheme provides that if the
Scheme cannot be made effective on or
before 31 st December, 2012, the Scheme
shall become null & void & be of no e ffect.
Whereas, Scheme of Amalgamation
submitted along with second motion
Petition, Para 5.6 of the Scheme provides
that if the Scheme cannot be made effective
on or before 31st December, 2014, the
Scheme shall become null & void & be of
no effect. It is submitted that all the
Petitioner Companies may be asked to
clarify the same that which Scheme of
Amalgamation is correct and desires to
enforce the same through H on‟ble Court ".
11. In reply to aforesaid observations of the Regional
Director, the petitioner Companies have filed an
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affidavit dated 27.05.2014, wherein it is stated that
transferee company undertakes to comply with all
guidelines and norms of Reserve Bank of India, as and
when required, pursuant to the scheme of
amalgamation of M/s Airwaves Telefil ms Private
Limited, M/s Lavitra Technologies Private Limited,
M/s Suave Technologies Private Limited & M/s Waves
Telefilms Private Limited (being the Transferor
Companies) with M/s Dolf Leasing Limited (being the
Transferee Company).
12. In reply to the Para 5 of observations of the Regional
Director the petitioner Company have filed an affidavit
dated 26.05.2014, wherein it is stated that Para No. 5.6
(a) of the Scheme of Amalgamation contained a
typographical error with respect to the year mentioned
over there. It should be read as 2014 and not 2012,
whole Para is represented below:
"In the event of any of the said sanctions and
approvals not being obtained and/or the
Scheme not being sanctioned by the Hon‟ble
High Court and/or the order not being passed
as aforesaid on or before 31 st day of
December, 2014 or within such further period
or periods as may be agreed upon by and
between the Transferor Companies and the
Transferee Company, this Scheme shall stand
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revoked and cancelled and become null and
void and be of no effect and in that event, no
rights and liabilities whatsoever, shall accrue
to or be incurred inter-se by the Transferor
and/or Transferee Companies or their
shareholders or creditors or employees or any
other person."
13. It is directed that in case i t is found that transferor and
transferee companies have violated any provisions of
the Reserve Bank of India Act then Directors of the
transferor and transferee companies guilty of breaching
the applicable provisions of the Reserve Bank of India
Act shall continue to be liable irrespective of the
sanction of the scheme.
14. Despite notice, Income Tax Authorities have not raised
any objection with regard to scheme.
15. In view of the aforesaid clarification and undertaking
given by the Petitioners, the concern of the Regional
Director has been duly addressed.
16. No objection has been received to the Scheme from any
other party. Mr. Pawan Kumar Mittal, Director of the
Transferee Company, has filed an affidavit confirming
that neither the Petitioner Companies nor th eir counsel
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has received any objection pursuant to citations
published in the newspapers.
17. In view of the approval accorded by the Shareholders
and Creditors of the Petitioner Companies,
affidavit/report filed by the Regional Director,
Northern Region and the Official Liquidator, attached
with this court to the proposed Scheme, there appears
to be no impediment to the grant of sanction in the
scheme. Consequently, sanction is hereby granted to
the Scheme under Sections 391 and 394 of the Act. The
Petitioner Companies will comply with the statutory
requirements in accordance with law.
18. Certified copy of the order be filed with the Registrar
of Companies with in thirty days from the date of
receipt of the same. In terms of the provisions of
Sections 391 and 394 of the Act, and in terms of the
Scheme, the whole or part of the undertakings, all
properties, 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
Company without any further act or deed. Upon the
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Scheme coming into effect, the Transferor
Company/Companies shall stand dissolved without
winding up.
19. 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.
20. Learned Counsel for the Petitioner submits that the
Petitioner Companies (collectively) would voluntarily
deposit a sum of Rs. 1 Lac in the common Pool fund of
the Official Liquidator within three weeks from today.
The Statement is accepted.
21. The petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
JULY 15, 2014/hj
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