Delhi High Court
Nyara Holdings Private Limited ... vs ..... on 5 May, 2014
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IN THE HIGH COURT OF DELHI AT NEW DELHI
COMPANY JURISDICTION
COMPANY PETITION NO. 40 OF 2014
IN THE MATTER OF:
Nyara Holdings Private Limited and Ors. ...Petitioner Companies
Through: Mr. Anirudh Das, Mr. Kamaljeet Singh,
Advocates for the Petitioner Companies.
Mr. Atma Sah, Assistant Registrar of
Companies appearing for the Regional
Director.
Mr. Rajiv Behl, appearing for the Official
Liquidator.
CORAM :
HON'BLE MR. JUSTICE SANJEEV SACHDEVA (ORAL)
ORDER
05.05.2014
1. This second motion petition has been filed under Sections 391-
394 of the Companies Act, 1956 ("Act") by the Petitioner
Companies, seeking sanction and approval of the Scheme of
Amalgamation between Nyara Holdings Private Limited, LMR
Investments Private Limited and Global Solutions Private
Limited and their respective Shareholders ("Scheme"). A copy
of the proposed Scheme is enclosed with the petition .
2. The Registered Office of the Petitioner Companies are situated
at New Delhi within the jurisdiction of this Court.
3. The details of the respective dates of incorporation of the
Petitioner Companies, their authorized, 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.
The latest audited accounts of the Petitioner Companies as on 31
March 2013 have been placed on record.
5. The copies of the 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 and 251 of the Act are pending
against the Petitioner Companies.
7. The Petitioner Companies had earlier filed Company
Application (Main) No.173 of 2013, seeking dispensation from
convening the meetings of the Equity Shareholders of the
Petitioner Companies to consider the Scheme. The Petitioner
Companies have no Secured Creditors or Unsecured Creditors.
8. By order dated 02.01.2014, this Court allowed the Company
Application and dispensed with the requirement of convening
the meetings of the Equity Shareholders of the Petitioner
Companies. The Petitioner Companies have thereafter filed the
present Petition seeking sanction of the Scheme by the Court.
9. By order dated 28.01.2014 , notice of the Petition was directed
to be issued to the Official Liquidator, Registrar of Companies
and the Central Government. Citation of the Petition was also
directed to be published in the "The Indian Express" (English
Edition) and "Jansatta" (Hindi Edition).
10. Affidavit dated 14.04.2014 has been filed by the Petitioner
Companies, showing compliance regarding service of notice of
the Petition on the Official Liquidator, Registrar of Companies
and the Regional Director and also regarding publication of
notice of the Petition in "THE INDIAN EXPRESS" (English
Edition) and "JANSATTA" (Hindi Edition). Copies of the
newspapers containing the citations have been filed along with
the Affidavit dated 14.04 2014 of the authorized signatory of the
Petitioner Companies.
11. In response to the notice issued on the Petition, the Official
Liquidator has filed Report dated 24.04 2014. It has been stated
in the said Report 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/Amalgamating Company 1 and 2 do not appear to
have been conducted in a manner prejudicial to the interest of its
members or to public interest as per the 2nd proviso of Section
394 (1) of the Act.
12. In response to the notice issued on the Petition, the Regional
Director has filed Report dated 24.04.2014.
13. The Regional Director in his Report has observed that there is
no transfer of employees of Transferor company No.2 in the
scheme. The Regional Director has further submitted that M/s
Global Solutions Pvt. Ltd. (Petitioner/Amalgamated Company)
is a Non-banking Finance Company (NBFC) and registered with
the Reserve Bank of India (RBI) and the Petitioner/
Amalgamated Company may be asked to give an undertaking
for all compliances from the RBI being concerned Regulator.
14. Learned counsel for the petitioner submits that the scheme
provides for the transfer of employees of the transferor
company No.2 in the transferee company.
15. Learned counsel has submitted that in Definition clause
1.2.1(c) (v), the amalgamating Company No.2 means and
includes any and all employees who are on the pay roll of
the amalgamating company No.2 including those engaged
at its office at their correct terms and conditions including
all Employees Benefits such as Provident Fund, Employees
State Insurance, gratuity funds and superannuation funds
etc.
16. With regard to the objection of the Regional Director in
respect of compliances of the Reserve Bank of India,
learned counsel for the petitioner undertakes on behalf of
the petitioners that the petitioner transferee company shall
comply with all the statutory requirement including the
requirements of the Reserve Bank of India and further that
upon the Scheme becoming effective, the
Petitioner/Amalgamated Company shall continue to be
regulated by the RBI and shall comply with all regulations and
rules issued by the RBI in this regard.
17. In view of the above, the concerns raised by the Regional
Director has been duly addressed.
18. No objection has been received to the Scheme from any other
party. The Petitioner Companies in the Affidavit dated
14.04.2014 have also confirmed that the Petitioner Companies
nor their counsel have received any objection pursuant to the
citations published in the newspapers.
19. In view of the approval accorded by the shareholders of the
Petitioner Companies, Representation/Report filed by the
Official Liquidator and the Regional Director, Northern Region
and the submissions of the Petitioner Companies, 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
Companies Act, 1956. The Petitioner Companies will comply
with the statutory requirements in accordance with law.
20. A Certified Copy of the formal order be filed with the Registrar
of Companies, NCT of Delhi and Haryana within 30 days from
the date of receipt of the same. The sanction order of this Court
shall be binding on the shareholders and creditors of the
Petitioner Companies. Upon the Scheme becoming effective in
terms of the Scheme, the Petitioner/Amalgamating Company 1
and Petitioner/Amalgamating Company 2 shall stand dissolved
without the process of winding up.
21. It is, however clarified that this order will not be construed as an
order granting exemption from payment of duty or any other
charges if payable in accordance with law or permission or
compliance with any other requirements which may be
specifically required under law.
22. Learned Counsel for the Petitioner Companies states that
Petitioner Companies(collectively) would voluntarily deposit a
sum of Rs 1,50,000/- in the common pool fund of the Official
Liquidator within three weeks from today.
23. The statement is accepted. The petition is allowed in the
above terms.
SANJEEV SACHDEVA, J
05 MAY 2014
