Delhi High Court
Ank Management Services Pvt Ltd vs .......... on 26 May, 2014
$~68
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 647/2013
ANK MANAGEMENT SERVICES 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)
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 ANK
Management Services Pvt Ltd (Transferor Company No.1)
Parnami Overseas Logistics Pvt Ltd (Transferor Company
No.2)with The Sixth Element Sports & Entertainments Pvt
Ltd(Transferee Company ) (Collectively referred as Petitioner
Company).
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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.
7. The Petitioner Companies had earlier filed CA (M) 152 of
2013 seeking directions of this Court for
dispensation/convening of meetings. Vide order dated 13th
November, 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.
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8. The Petitioner Companies had thereafter filed the present
Petition seeking sanction to the Scheme of Amalgamation.
Vide order dated 10th December, 2013, 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,
in original, containing the publications have also been filed
along with the Affidavit of Service.
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 9th April, 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
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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 the second proviso of Section 394(1)
of the Companies Act, 1956.
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. The
Learned Regional Director has submitted that the Central
Government has no objection to the proposed Scheme of
Amalgamation.
11. 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
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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 will
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 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.
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12. 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) Rules, 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 Resolution in the Extra ordinary
General Meeting held on 2nd April, 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.
13. An Application being CA 1232 of 2014 is moved by the
Petitioner Transferee Company seeking exemption from filing
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a separate Petition under sections 100 to 104 of the Companies
Act, 1956 for the aforesaid reduction of capital.
14. 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) Rules, 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 1232 of
2014) to this effect is allowed.
15. No objection has been received to the Scheme of
Amalgamation from any other party. Mr Sahil Manchanda,
Director of the Transferee Company has filed an affidavit
confirming that neither the Petitioner Companies nor their
Counsel has received any objection pursuant to citations
published in the newspapers.
16. 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
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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.
17. 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,
the Transferor Companies shall stand dissolved without
winding up.
18. 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.
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19. 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.
20. The Petition is allowed in the above terms.
Order Dasti
SANJEEV SACHDEVA, J
MAY 26, 2014
HJ
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