Delhi High Court
Pearson India Private Limited And ... vs ........... on 21 May, 2014
$~26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.Appl.(M) 91/2013 in CO.PET. 591/2013
IN THE MATTER OF PEARSON 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 in connection with the Scheme of
Amalgamation of the Pearson India Private Limited (hereinafter
Petitioner Company), NCS Pearson (India) Private Limited, Dorling
Kindersley (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 at 11,
Community Centre, Panchsheel Park, Delhi - 110017, within the
CO.PET. 591/2013
National Capital Territory of Delhi and is within the jurisdiction of
this Court.
3. The details with regard to the date of incorporation of the Petitioner
Company, its authorized, issued, subscribed and paid up capital have
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 31.03.2012 of the
Petitioner Company have also been enclosed with the Petition and the
Annual Accounts for the year ended 31.03.2013 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. 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. The Petitioner Company had earlier filed Co. Appl (M) No. 91 of
2013 seeking directions of this Court for dispensation/convening of
meetings of the Shareholders. Vide order dated 13.08.2013, 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 Petitioner/Transferor Company has no
Secured Creditors. A meeting of unsecured creditors was convened as
per the order dated 13.08.2013 of this Court. The unsecured creditors
CO.PET. 591/2013
who came for the meeting unanimously 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
13.11.2013, 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 20.01.2013.
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 05.05.2014
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 except to the facts that
appointed date in the scheme is 1.4.2011 instead of 1.4.2013 and that
the Statutory Auditor had given adverse remarks and qualification in
its report for the Financial Year ended on 31.3.2013 and 31.3.2012 in
respect of non-compliance with Section 210 of the Companies Act,
1956 as the Financial Statements for the year ended March 31, 2013
CO.PET. 591/2013
and March 31, 2012 were not laid before the shareholders in the
Annual General Meeting within the stipulated time.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
CO.PET. 591/2013
15. 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.
16. 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.
17. 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.
18. 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.
19. 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
CO.PET. 591/2013
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.
20. 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.
21. 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.
22. Learned Counsel for the Petitioner state that the Petitioner Company
would voluntarily deposit a sum of Rs. 75,000/- with the Common
CO.PET. 591/2013
Pool fund of the Official Liquidator within three weeks from today.
The statement is accepted.
23. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
MAY 21, 2014
CO.PET. 591/2013
