Delhi High Court
Madhav Fincap Private Limited vs ......... on 21 May, 2014
$~28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.APPL.(M) No. 61/2014
IN THE MATTER OF MADHAV FINCAP PRIVATE
LIMITED
.....Applicants
Through: Mr. Tariq Muneer,
Advocate,Mr Atma Sah,
Asst. Registrar of
Companies on behalf of
Regional Director, Mr. Rajiv
Behl, Advocate for the
Official Liquidator
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 21.05.2014
SANJEEV SACHDEVA, J (ORAL)
1. This is a second motion joint petition filed under section
391-394 of the Companies Act, 1956, in connection with the
scheme of Amalgamation of Madhav Fincap Private Limited
(hereinafter referred to as Transferor Company No.1), Ladliji
Enterprises Private Limited (hereinafter referred as
Transferor Company No.2) ( jointly referred to as
Petitioners/Transferor Companies) wholly owned subsidiary
Companies with their holding company Baba Lease and
Investment Private Limited (Transferee Company).
2. The Petitioner/ Transferor Companies are wholly owned
subsidiaries of the Transferee Company and there being no
rearrangement vis-à-vis the shareholders of the Transferee
Company, the Transferee Company has not approached the
Hon'ble Court.
3. The Registered office of the Applicants/Transferor
Companies are situated within the National Capital Territory
of Delhi and are within the jurisdiction of this Court.
4. The details of the dates of incorporation of the
Applicants/Transferor Companies, their authorized, issued,
subscribed and paid up capital have been enclosed with the
Petition.
5. The Copies of the Memorandum and Articles of Association
as well as the latest audited annual accounts for the year
ended 31st March 2013 of the Applicants/transferor
companies have also been enclosed with the application.
6. Learned Counsel for the Applicants/Transferor Companies
submits that no proceeding against the applicant companies
as on the date of the present application.
7. The Petitioner Company had earlier filed CA (M) No. 176 of
2013 in this court seeking directions for dispention of the
meetings of the shareholders, and the unsecured creditors of
Petitioner Companies to consider the scheme, Petitioner
Companies have no secured creditors.
8. By Order dated 20th December 2013 , this allowed the
application and dispensed with the requirements of
convening their meetings.
9. The Petitioner Companies have thereafter filed the present
petition seeking sanction of the proposed scheme. By order
dated 27th January 2014, notice in the petition was directed
to be issued to the Central government/Regional Director
('RD'), Northern Region ('RD') and the official liquidator
('OL'), citations were also published in the
'Statesman'(English) and 'Veer Arjun' (Hindi). An affidavit
of publication has been filed by the Petitioner showing
compliances regarding publication of citations in the
aforesaid newspapers on 18.02.2014, scanned copies of the
newspaper cuttings, containing the publications have been
filed with the affidavit of service.
10. The RD in his affidavit dated 27.03.2014 has stated that,
upon sanction of the scheme, all the staff/ employees of the
Transferor Company shall become the employees of the
Transferee Company without any break or interruption in
their services. The RD has further submitted that the
petitioner company may be asked to give an undertaking for
all compliances from Reserve Bank of India being concerned
Regulator for the Petitioner/ Transferor as well as the
Transferee Companies.
11. The Petitioner Transferor companies have filed affidavits
dated 03.05.2014 through their authorized signatories
respectively confirming that neither the Petitioner Transferor
companies nor their counsel has received any objection
pursuant to the citations published in the newspapers. By
same affidavits the petitioner/ Transferor companies have
given an undertaking to inform the Reserve Bank with the
Courts order within a period of one month from the date of
the order of this Hon'ble Court.
12. The Transferee Company has also filed affidavit dated
17.05.2014 through its authorized signatory thereby
undertaking to comply with all applicable legislation
including any rules and regulations promulgated by the
concerned regulators including Reserve Bank of India.
13. Mr. Atma Sah, Asstt. Registrar of Companies submits that in
case the Transferor Company is doing investment business
in contravention to the provisions of the Reserve Bank of
India Act,1934, the right of Reserve Bank Of India to take
such action as may be permissible in law, should be
reserved.
14. Learned Counsel for the petitioner submits that the transferor
company has not taken any deposit and is not a financial
institution and has not contravened any provision of the
Reserve Bank of India Act. Learned counsel for the
petitioner submits that an affidavit of undertaking has been
filed on behalf of the transferee Company has been filed and
the transferee company undertakes to comply with all
applicable legislations including rules and regulations of the
concerned regulators including Reserve Bank of India and
further, he undertakes on behalf of the Transferor and
Transferee Company that the Transferor Company shall be
liable to comply with all the provisions of the Act and the
rules and regulations and the Transferee Company shall
continue to be liable in case of breach of any provision of the
Reserve Bank of India.
15. It is further directed that in case it is held that the transferor
company has violated any provision of the Reserve Bank of
India Act the Directors of the Transferor Company guilty of
breaching the provisions of Law shall continue to be liable
despite scheme of amalgamation being allowed. In view of
the above , the concerns of the Regional Director are
addressed.
16. In response to the notice issued on the Petition, the Official
Liquidator has filed Report dated 22.06.2013 . It has been
stated in the 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 Companies do not appear to have
been conducted in a manner prejudicial to the interest of its
members or to public interest as per 2 nd proviso of section
394(1) of the Act.
17. In view of the approval accorded by the shareholders and
creditors of the Petitioner Transferor Company,
representations/ reports filed by the RD and the OL to the
proposed scheme, and the undertakings filed by the
Transferor and Transferee Companies , there appears to be
no impediment to the grant of sanction to the proposed
scheme. Consequently, sanction is hereby granted to the
proposed scheme under sections 391 and 394 of the Act. The
Petitioner Transferor Company will comply with the
statutory requirements in accordance with Law.
18. A certified copy of the order be filed with the Roc within #0
days from the receipt of the same. In terms of Sections 391
and 394 of the Act and in terms of the Scheme, the property,
assets, rights and powers of the petitioner Transferor
Companies shall be transferred. Similarly, in terms of the
scheme, all the liabilities and the Transferee Company
without any further act or deed. Upon the scheme coming
into effect, the Transferor 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 states that the Petitioner
Transferor Companies would voluntarily jointly deposit a
sum of Rs1,00,000/- in the common pool fund of the OL
within three weeks from today. The statement is accepted.
21. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
MAY 21, 2014
