Delhi High Court
Drive Fast Holdings Pvt Ltd vs ........ on 26 May, 2014
$~69
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 43/2014
DRIVE FAST HOLDINGS PVT LTD
..... Petitioner
Through: Mr Rajeev K Goel, Advocate for the
Petitioners, Mr. Atma Sah, Assistant
Registrar of Companies for the
Regional Director
Mr.S.B Gautam, official Liquidator.
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 26.05.2014
SANJEEV SACHDEVA, J (ORAL)
CO.PET. 43/2014 & CA 620/2014 in CP 43/2014
1. This second motion joint Petition has been filed under sections
391 to 394 of the Companies Act, 1956 ("ACT") seeking
sanction to the Scheme of Amalgamation of Drive Fast
Holdings Pvt Ltd (Transferor Company No.1), Madhusudan
Buildcon Pvt Ltd (Transferor Company No.2), Maruha Trading
Pvt Ltd(Transferor Company No.3),Suridhi Infratech Pvt Ltd
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(Transferor Company No.4), Suridhi Infracon Pvt
Ltd((Transferor Company No.5) with Suridhi Retail Pvt Ltd
(Transferee Company). (Collectively referred as the Petitioner
Companies). A copy of the Scheme has been enclosed with the
petition.
2. The registered offices of all 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 authorised, 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.
5. The copies of resolutions passed by the Boards 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 to 251 of the Companies Act,
1956 is pending against the Petitioner Companies.
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7. The Petitioner Companies had earlier filed CA (M) 166 of 2013
seeking directions of this Court for dispensation/convening of
meetings. Vide order dated 11th December, 2013, this Court
allowed the Application and requirement of convening all the
meetings of Shareholders and Creditors of the Transferor
Companies and the Transferee Company were dispensed with.
8. The Petitioner Companies had thereafter filed the present
Petition seeking sanction to the Scheme of Amalgamation. Vide
order dated 21st January, 2014, notice of the Petition was
directed to be issued to the Regional Director, Northern Region,
Ministry of Corporate Affairs, Noida and the Official
Liquidator attached with this Court. Citations were also directed
to be published in „Business Standard‟ (English, Delhi Edition)
and „Dainik Bhaskar‟ (Hindi, Delhi 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
newspapers. Copies of the newspaper cuttings containing the
publications have also been filed along with the Affidavit of
Service.
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9. In response to the notice issued, the Official Liquidator sought
information from the Petitioner Companies. Based on the
information received, learned Official Liquidator has filed his
report dated 13th March, 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 Transferor Companies, which are subject
matter of dissolution, do not appear to have been conducted in a
manner prejudicial to the interest of its members, creditors or to
public interest as per 2 nd Proviso of Section 394(1) of the Act.
10. In response to the notice issued in the Petition, learned Regional
Director, Northern Region, Ministry of Corporate Affairs has
filed his Affidavit/Report dated 20th May, 2014. Relying on the
Scheme of Amalgamation, he has stated that, upon sanction of
the Scheme, all the employees of the Transferor Companies
shall become the employees of the Transferee Company
without any break or interruption in their services.
11. The Learned Regional Director made the following
observations:
a. The Transferor Company has pending Share
Application Money of Rs. 40 lac as on 31.3.2013.
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The Petitioner Company may be advised to either
refund the Share Application Money or allot shares
to the applicants.
b. On perusal of the audited annual accounts for the
year ended 31st March, 2012 of the petitioner
Transferor Company No. 5-Suridhi Infracon Pvt
Ltd, some typographical error were noticed in
point no. 1 of the Notes to Accounts relating to the
break-up of assets, liabilities and reserves of an
earlier merger which had taken place in the
petitioner Transferor Company No. 5. Since the
main Balance Sheet of the Petitioner Transferor
Company No. 5 reflects the correct amount, the
said typographical error has no impact on the
Scheme of Amalgamation, in valuation or in
determination of shares exchange ratio. Petitioner
Transferor Company No. 5 may be asked to file
corrected Balance Sheet of the Company for the
year ended 31.3.2012.
12. In response to the aforesaid observations, the Petitioner
Transferee Company in the Reply Affidavit dated 23rd May,
2014, has submitted that the entire outstanding Share
Application Money of Rs. 40 lac in the Transferor Company
No. 2- Madhusudan Buildcon Pvt Ltd has been refunded to the
Applicant vide Cheque No. 643005 dated 21st May, 2014. It
was submitted that as on date, no Share Application Money is
pending in any of the Petitioner Companies. Further, it was
clarified that as advised by the learned RD, the corrected copy
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of the audited annual accounts of the Transferor Company No.
5 for the year ended 31st March, 2012 have been filed with
Registrar of Companies vide SRN C03875291 dated 22nd May,
2014 along with requisite filing fee.
13. In view of the aforesaid clarifications given by the Petitioners,
that the concern raised by the Learned Regional Director have
been duly addressed.
14. Mr Rajeev Goel, Learned Counsel for the Petitioner
Companies, submitted that the Transferor Companies is holding
some shares of the Transferee Company which would be
cancelled on implementation of the Scheme of Amalgamation
as a crossholding. He submitted that technically, there would
be a reduction of capital of the Transferee Company to that
extent. He, however, clarified that such reduction would not
involve either the diminution of any liability in respect of un-
paid share capital or the payment to any shareholder of any
paid-up share capital, and accordingly, the provisions of section
101(2) of the Act would not be applicable, the provisions of
Rule 85 of the Companies (Court) Rules, 1959, which provides
that where a proposed compromise or arrangement involves a
reduction of capital of the company, the procedure prescribed
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by the Act and the Companies (Court) Rules relating to the
reduction of capital, and the requirements of the Act and the
Rules in relation thereto, shall be complied with, before the
compromise or arrangement so far as it relates to reduction of
capital, is sanctioned. Mr Goel submitted that Rule 85 only
provides for compliance with relevant provisions with regard to
the reduction of capital. Rule 85 does not provide for filing of
separate petition under sections 100 to 104 of Act. He also
submitted that where reduction of capital is an integral part of
the Scheme of Amalgamation/Arrangement, no separate
petition is required to be filed under sections 100 to 104 of Act
for such capital reduction.
15. It is submitted that the substantial compliance with the
provisions of sections 100 to 104 of the Companies Act, 1956,
and the applicable rules of the Companies (Court) Rule, 1959,
have already been made with regard to the proposed reduction
of share capital on account of cancellation of cross holding of
share in the following manner:
a. Members of the Transferee Company have
considered and unanimously approved the
proposed Scheme of Amalgamation and the
proposed reduction of capital by passing a Special
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Resolution in the Extra ordinary General Meeting
held on 5th March, 2014.
b. All the un-secured creditors of the Transferee
Company have already given their written
consents/NOC to the proposed Scheme of
Amalgamation. The Transferee Company does not
have any Secured Creditor.
16. An Application being CA 620 of 2014 is moved by the
Petitioner Transferee Company seeking exemption from filing a
separate Petition under sections 100 to 104 of the Companies
Act, 1956 for the aforesaid reduction of capital.
17. In view of the fact that the substantial compliance with the
provisions of sections 100 to 104 of the Companies Act, 1956,
and the applicable rules of the Companies (Court) Rule, 1959,
have already been made with regard to the proposed reduction
of share capital of the Transferee Company, requirement of
filing a separate petition under sections 100 to 104 of the Act, is
dispensed with and the present Application (CA 620 of 2014) to
is allowed.
18. No objection has been received to the Scheme of
Amalgamation from any other party. Mr Jatin Madaan, Director
of the Transferee Company has filed an affidavit confirming
that neither the Petitioner Companies nor their Counsel has
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received any objection pursuant to citations published in the
newspapers.
19. 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.
20. 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 Companies be transferred to and vest in the
Transferee Company without any further act or deed.
Similarly, all the liabilities and duties of the Transferor
Companies be transferred to the Transferee Company without
any further act or deed. Upon the Scheme coming into effect,
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the Transferor Companies 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
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. The Petitioner Companies (collectively) would voluntarily
deposit a sum of Rs. 1,00,000/- in the Common 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 26, 2014
HJ
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