Delhi High Court
Dorling Kindersley (India) ... vs ............ on 21 May, 2014
$~29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 105/2014
IN THE MATTER OF DORLING KINDERSLEY (INDIA)
PRIVATE LIMITED AND ORS.
......Petitioner
Through- Mr. Siddharth Jha
Advocates for the Petitioner
Companies
Mr. Atma Sah, Assistant
Registrar of Companies for
the Regional Director
Mr. Rajiv Bahl, Advocate for
the official Liquidator.
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 21.05.2014
SANJEEV SACHDEVA, J (ORAL)
1. This second motion joint Petition has been filed under sections
391-394 of the Companies Act, 1956 (for short 'Act') in
connection with the Scheme of Amalgamation of the Dorling
Kindersley (hereinafter Petitioner Company), NCS Pearson
(India) Private Limited, Pearson India Private Limited, Tutor
Vista Education India Private Limited, Pearson Education
Services Private Limited, Edurite School Services Private Limited
(Transferor Companies), with Tutor Vista Global Private Limited
(Transferee Company).
2. The registered office of the Petitioner Company is situated at 11,
Community Centre, Panchsheel Park, Delhi - 110017, within the
National Capital Territory of Delhi and is within the jurisdiction
of this Court.
3. The details with regard to the date of incorporation of Petitioner
Company, its authorized, issued, subscribed and paid up capital
has been given 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, 2012 of the Petitioner Company have also been enclosed
with the Petition and the Annual Accounts for the year ended
31.3.2013 was also filed with the Registrar of Companies after
filing of this Petition.
5. A copy of the Resolution passed by the Board of Directors of the
Petitioner Company approving the Scheme of Amalgamation has
also been placed on record.
6. The 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 Company.
7. The Petitioner Company had earlier filed Co. Appl (M) No. 90 of
2013 seeking directions of this Court for dispensation/convening
of meetings of Shareholders. Vide order dated 7.11.2013, this
Court allowed the Application and dispensed with the
requirement of convening meetings of Shareholders of the
Petitioner Company and ordered to convene the meeting of the
unsecured creditors of the Petitioner Company. The
Transferor/Petitioner Company has no Secured Creditors. A
meeting of unsecured creditors was convened as per the order
dated 7.11.2013 of this Court. The unsecured creditors who came
for the meeting voted in favour of the resolution approving the
Scheme of Amalgamation.
8. The Petitioner Company thereafter filed the present Petition
seeking sanction of the Scheme of Amalgamation. Vide order
dated 12.2.2014, notice in the Petition was directed to be issued to
the Regional Director, Northern Region and the Official
Liquidator. Citations were also directed to be published in
'Financial Express' (English Edition) and 'Nav Bharat Times'
(Hindi 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 on 12.3.2014. Copies of the newspapers'
cutting, in original, containing the publications have been filed
along with the Affidavit of Service.
9. In response to the notice issued, the Official Liquidator sought
information from the Petitioner Company. Based on the
information received, the Official Liquidator has filed his report
dated 5.5.2014 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
Petitioner 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 the second proviso to section 394(1) of the
Act, except to the facts that appointed date in the scheme is
01.04.2011 instead of 01.04.2013 and that the Statutory Auditor
had given adverse remarks and qualification in its report for the
Financial Year ended on 31.03.2013 and 31.03.2012 in respect of
non-compliance with Section 210 of the Companies Act, 1956 as
the Financial Statements for the year ended March 31, 2013 and
March 31, 2012 were not laid before the shareholders in the
Annual General Meeting within the stipulated time.
10. The learned counsel for the Petitioner Company has agreed to
change the appointed date to 1.4.2013. With regard to the adverse
comments made by the Statutory Auditor the learned counsel for
the Petitioner Company states that filing of Compounding
Applications under Section 621 A of the Companies Act, 1956
are under process.
11. The Regional Director has raised an observation that the
petitioner/Transferor Company may be asked to give an
undertaking for all compliances from Reserve Bank of India, as
required under FEMA for transactions involving foreign
bank/entities.
12. Learned counsel for the petitioner submits that an affidavit of
undertaking has been filed on behalf of the Transferee Company
that the Transferor Company shall comply with all the
compliances as prescribed by the Reserve Bank of India in terms
of FEMA for issuance of equity shares to the shareholders of the
Transferor Company who are not resident entities.
13. The Regional Director has further raised an observation that the
Transferor Company may be asked to file an undertaking that
they shall comply with the provisions of Section 2(43) of the
Companies Act, 2013 and Accounting Standard-14.
14. The Transferee Company has filed an affidavit of undertaking
that it shall implement the scheme of amalgamation in its books
of accounts in due compliance of Accounting Standard-14, as
may be amended from time to time and shall also comply with the
provisions of Section 2(43) of the Companies Act, 2013.
15. The other observation raised by the Regional Director is that the
appointed date has been fixed as 01.04.2011 whereas the Balance
Sheet as on 31.03.2012 is available with the petitioner company.
16. Learned counsel for the petitioner submits that an appointed date
of 01.04.2011 was fixed keeping in view the financial exigencies
of the Company. However, in the discretion of the Court, the
appointed date may be changed to a later date. It is, accordingly,
directed that the appointed date shall be 01.04.2013.
17. The Regional Director has further raised a concern that the
Annual Return and the Balance Sheet as on 31.03.2013 have not
been filed and there is a violation of the provisions of Sections
159/220 of the Companies Act.
18. Learned counsel for the Petitioner submits that the requisite
Balance Sheet and Annual Return and an appropriate application
for compounding are in the process of being filed and shall be
filed within a period of one week. Learned counsel for the
petitioner further submits that compounding application under
Section 621A of the Act has already been filed. Learned counsel
for the petitioner submits that the petitions before the High Court
of Karnataka and High Court of Judicature at Madras are pending.
In view of the above, the concerns of the Regional Director are
addressed.
19. No objection has been received to the Scheme of Amalgamation
from any other party. It is submitted that neither the Petitioner
Company nor their counsel has received any objection pursuant to
citation published in the newspapers.
20. In view of the approval accorded by the Shareholders and the
Unsecured Creditors of the Petitioner Company;
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. However it will be subject to the orders
passed by the High Court of Karnataka and the High Court of
judicature at Madras in other Transferor Companies and
Transferee Company. The Petitioner Company will comply with
the statutory requirements in accordance with law.
21. A certified copy of the 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, and in terms of the Scheme, the whole or
part of the undertakings, the properties, rights and powers of the
Transferor Company 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
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. 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 nay law.
23. Learned Counsel for the Petitioner state that the Petitioner
Company would voluntarily deposit a sum of Rs. 75,000/- with
the Common Pool fund of the Official Liquidator within three
weeks from today. The statement is accepted.
24. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
MAY 21, 2014
