Delhi High Court
In The Matter Of Birlasoft ... vs ...... on 9 May, 2014
$~30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 162/2014
IN THE MATTER OF BIRLASOFT TECHNOLOGIES LTD.
& ANR.
..... Petitioner
Through: Ms. Shilpi Jain and Mr. Sharad,
Advocates.
Mr. Atma Sah, Asstt. Registrar of
Companies
Mr. Kanwal Chaudhary, Adv. for OL
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 09.05.2014
SANJEEV SACHDEVA, J (ORAL)
1. This is a Second Motion Petition filed under Sections 391 to
394 of the Companies Act, 1956 by the Petitioner Companies,
seeking sanction of the Scheme of Amalgamation of Birlasoft
Technologies Ltd and Birlasoft Enterprises Ltd with Birlasoft
(India) Ltd ("Scheme" for short). A copy of the proposed
Scheme is enclosed with the Petition.
2. The Registered Offices of both 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 authorized, issued, subscribed and paid up
capital have been set out in the Petition.
4. The copies of 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 Petitioners 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 are pending against the Petitioner Companies.
7. A copy of the Scheme has been placed on record and the salient
features of the Scheme have been detailed in the Petition. The
Scheme provides that upon sanction of the Scheme by the
Court, the Amalgamation of the Petitioner Transferor
Companies with the Petitioner Transferee Company will take
effect from the Appointed Date as mentioned in the Scheme
(i.e. 01.04. 2014).
8. The Petitioner Companies had earlier filed CA (M) No 39 of
2014 seeking directions of this Court for dispensation from
convening and holding the meetings of the shareholders,
secured creditors and unsecured creditors of the Petitioner
Companies.
9. By order dated 26.02.2014, the Court allowed the Application
and dispensed with the requirement of convening and holding
the meetings of the shareholders, secured creditors and
unsecured creditors of the Petitioner Companies.
10. The Petitioner Companies have filed the present Petition
seeking sanction of the Scheme. By order dated 11.03.2014,
notice of the Petition was directed to be issued to the Official
Liquidator, Registrar of Companies and the Central
Government (through Regional Director, Northern Region,
Ministry of Corporate Affairs). Citations were also directed to
be published in „Business Standard‟ (English Edition) and
„Business Standard‟ (Hindi Edition). An affidavit of service and
publication has been filed by the Petitioner Companies, inter
alia, affirming that the citations as directed were published in
the aforesaid newspapers on 04.04. 2014.
11. In response to the notice issued in the Petition, Mr Alok
Samantarai, Regional Director, Northern Region, Ministry of
Corporate Affairs („Regional Director‟ for short) has filed his
Affidavit/Representation dated 06.05.2014. In his affidavit, the
Regional Director has inter alia, stated that the submission made
in Para 4 and 5 of his Affidavit may be considered and the case
be decided on its merits.
12. In para 4 of his affidavit, the Regional Director has submitted
that 11.215 shares of the Petitioner Transferor Company No. 1
viz Birlasoft Technologies Ltd are held by a foreign company
(M/s GE Capital Mauritius Equity Investment III) and the
Petitioner Transferor Company No. 1 may be asked to give an
undertaking for all compliances from RBI as required under
FEMA for the above transactions involving foreign banks/
entities.
13. The learned counsel pointed out that there is an apparent
inadvertent error in the number of shares mentioned by the
Regional Director in para 4 of his affidavit. The correct number
of shares held by M/s GE Capital Mauritius Equity Investment
III in Petitioner Transferor Company No. 1, viz Birlasoft
Technologies Ltd, is 20,20,000 shares constituting 11.20977 %
of its total paid-up share capital.
14. The learned counsel further pointed out that, in view of the
aforesaid submission of the Regional Director, the Petitioner
Transferor Company No. 1 has filed an affidavit, suo moto,
confirming, acknowledging and assuring this Hon‟ble Court and
undertaking that all compliances required to be made under the
Foreign Exchange Management Act, 1999 ("FEMA") and all
applicable rules, regulations, notifications, directions and
circulars made/issued thereunder, have been and shall be duly
made and complied with by it in relation to all the shares of the
Petitioner Transferor Company No. 1 held by a foreign
company, namely, M/s GE Capital Mauritius Equity Investment
III.
15. In para 5 of his affidavit, the Regional Director has submitted
that in compliance with Ministry of Corporate Affair‟s Circular
No. 1/2014 dated 15.01.2014, the Chief Income Tax
Commissioner, New Delhi was requested vide letter dated
24.03.2014 to examine the Scheme and to submit their
comments within 15 day and a letter dated 03.04.2014 has been
received by the Regional Director from the Chief Income Tax
Commissioner, New Delhi that it has transferred the letter to
The Commissioner of Income Tax, Delhi - I and requested
them to furnish their comments / observations to the office of
Regional Director. The said 15 days period has lapsed and no
comments have been received from Income Tax Department.
16. It was submitted by the learned counsel that since the above
submission made by the Regional Director in his Affidavit is
only a statement of fact, and since no comments have been
received by the Regional Director from the Chief Income tax
Commissioner despite lapse of 15 days after giving of notice to
him as has been provided in Ministry of Corporate Affair‟s
Circular No. 1/2014 dated 15.01.2014, in view of compliance
having been made in terms of the above Circular, in the
circumstances, it would be appropriate and proper to assume
that the Chief Income tax Commissioner has no comments to
make in this case.
17. In view of the above, the observations made by the Regional
Director stand addressed.
18. Pursuant to the notices issued in the Petition, the Official
Liquidator sought information from the Petitioner Transferor
Companies. Based on the information received, the Official
Liquidator has filed his report dated 07.05.2014 wherein he has
stated that, until the date of filing of his report, 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 Petitioner Transferor Companies do not appear
to have been conducted in a manner prejudicial to the interest of
its members or to public interest as per the second proviso of
Section 394(1) of the Companies Act, 1956.
19. No objection(s) have been received to the Scheme from any
other party. Mr Sonam Sarin, the authorized signatory of the
Petitioner Companies, has filed an affidavit dated 05.05.2014
whereby it has been affirmed that neither the Petitioner
Companies nor their Counsel have received any objection
pursuant to citations published in the newspapers.
20. 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.
21. A 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 Company shall stand dissolved without winding
up.
22. In view of the approval accorded by the shareholders and
creditors of the Petitioner Companies by giving their consent to
the Scheme in writing; representation/reports filed by the
Regional Director, Northern Region and the Official Liquidator
attached with this Court, on the proposed Scheme, the Scheme
is hereby sanctioned.
23. 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.
24. The Petitioner Transferor Companies and the Petitioner
Transferee Company will comply with the statutory
requirements in accordance with law. Certified copy of the
formal order be filed with the Registrar of Companies within 30
days from the date of receipt of the same.
25. The Petitioner Transferee Company states that it 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.
26. The Petition is allowed in the above terms.
SANJEEV SACHDEVA, J
MAY 09, 2014
