Delhi High Court
Kvtek Power Systems Private ... vs ........ on 23 July, 2014
Author: Sanjeev Sachdeva
$~6
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 245 /2014
KVTEK POWER SYSTEMS PRIVATE LIMITED
..... Petitioner
Through: Mr. Ashish Middha, Advocate 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
% 23 .07.2014
SANJEEV SACHDEVA, J (ORAL)
1. This second motion joint Petition has been filed under sections
391 to 394 of the Companies Act, 1956 ("Act") seeking
sanction to the Scheme of Amalgamation ("Scheme") of
KVTEK Power System Private Limited (Transferor Company)
with ETM Technologies Private Limited (Transferee
Company)(Collectively referred as the Petitioner Companies).
A copy of the Scheme has been enclosed with the petition.
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2. The registered offices of all the Petitioner Companies are
situated at New Delhi, within the jurisdiction of this Court.
3. The details of respective dates of incorporation of the petitioner
companies, their authorised, issued, subscribed and paid up
capital have been set out in the petition.
4. The copies of the Memorandum and Articles of Association of
the Petitioner Companies have been enclosed with the petition.
5. The copies of resolutions passed by the Board of Directors of
the Petitioner Companies approving the scheme have also been
filed along with the petition.
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 CA (M) 54 of 2014
seeking directions of this Court for dispensation/convening of
meetings. Vide Order dated 26th March, 2014, this Court
allowed the Application and requirement of convening all the
meetings of Shareholders and Creditors of the Transferor
Company and the Transferee Company were dispensed with.
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8. The Petitioner Companies had thereafter filed the present
petition seeking sanction to the Scheme of Amalgamation. Vide
Order dated 22nd March, 2014, notice of the petition was
directed to be issued to the Regional Director, Northern Region,
Ministry of Corporate Affairs and the Official Liquidator
attached with this Court. Citations were also directed to be
published in „Business Standard‟ (English, Delhi Edition) and
„Veer Arjun‟ (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. Pursuant to the response to notice issued, the Official
Liquidator sought information from the Petitioner Companies.
Based on the information received, learned Official Liquidator
has filed his report dated 16th July, 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, which
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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.
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 3rd July, 2014. Relying on the
Scheme of Amalgamation, he has stated that, upon sanction of
the Scheme, all the employees of the Transferor Company shall
become the employees of the Transferee Company without any
break or interruption in their services.
11. The Learned Regional Director has stated in his Affidavit that
despite notice no objection has been received from the Income
Tax Department with regard to the Scheme.
12. The Regional Director further submits that "as per clause 13 of
the Scheme of Amalgamation the name of the Transferee
Company shall change from "ETM Technologies Private
Limited" to "KVTEK Power Systems Private Limited" without
any further act or deed. Transferee Company may be directed
to follow the prescribed procedure of the Companies Act."
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13. The petitioner has filed an affidavit submitting that the
Transferee Company undertakes to file the necessary forms
with the Registrar of Companies for change of name. Learned
counsel for the petitioner further undertakes on behalf of the
Petitioner companies that the statutory compliances for change
of name as stipulated by the Company Act shall be duly
followed.
14. In view of the aforesaid clarification and undertaking given by
the Petitioners, the concerns of the Regional Director have been
duly addressed.
15. No objection has been received to the Scheme of
Amalgamation from any other party. Mr Anil Uppal, Director
of the Transferee Company has filed an Affidavit confirming
that neither the Petitioner Companies nor their Counsel has
received any objection pursuant to citations published in the
newspapers.
16. 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
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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 Act. The
Petitioner Companies will comply with the statutory
requirements in accordance with law.
17. 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 transferred to and vest in the Transferee Company without
any further act or deed. Similarly, all the liabilities and duties
of the Transferor Company are transferred to the Transferee
Company without any further act or deed. Upon the Scheme
coming into effect, the Transferor Company shall stand
dissolved without winding up.
18. 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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19. The Petitioner Companies (collectively) 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.
20. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
JULY 23, 2014
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