Delhi High Court
Orchid Deepak Diwan, Raghu ... vs ............ on 30 May, 2014
$~27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 208/2014 WITH CO.APPL.(M) 41/2014
IN THE MATTER OF
ORCHID DEEPAK DIWAN, RAGHU PRINTER
PRIVATE LIMITED
..... Petitioner
Through: Through Mr. Deepak Diwan
Advocate for the Petitioners,Mr.
Atma Sah, Assistant Registrar of
Companies for the Regional
Director,Mr. Rajiv Bahl, Advocate
for the Official Liquidator, Mr.
Sanjeev Sabharwal, Standing
Counsel for Income Tax
Department with Mr. J.L Meena
(ITO Ward 13(IV)
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 30.05.2014
SANJEEV SACHDEVA, J (ORAL)
1. This is second motion joint Petition filed under Sections
391- 394 of the Companies Act, 1956 ("ACT") by Orchid
Printers (p) Ltd. (Transferor Company) with Syndicate
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Printers Limited (Transferee Company) (collectively referred
as "Petitioner Companies")seeking sanction of the Scheme
of Amalgamation. A Copy of the Scheme is enclosed with
present petition.
2. The registered offices of the Petitioner Companies are
situated at New Delhi, within the jurisdiction of this Court.
3. Details with regard to the Date of Incorporation of Petitioner
Transferor and Transferee Companies, their Authorized,
Issued, Subscribed and Paid Up Share Capital have been
given in the Petition.
4. Copies of the Memorandum and Articles of Association as
well as the provisional half yearly Balance Sheet of the
Petitioner Transferor Company for the period ended 30th
September, 2013 along with latest audited Annual Accounts
for the year ended 31st March, 2013 of the Petitioner
Transferor and Transferee Companies have also been
enclosed with the Petition.
5. Copies of the Resolutions passed by the Board of Directors
of the Petitioner Companies approving the Composite
Scheme of Amalgamation have also been placed on record.
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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. That the Transferee Company is the Holding Company
(Holding 98.90% Shares) of the Transferor Company.
8. The Petitioner Companies had earlier filed CA (M) No. 41
of 2014 seeking directions of this Court for
dispensation/convening of meetings. Vide order dated 21st
March, 2014, this Court allowed the Application and
dispensed meetings of Equity Shareholders, Secured and
unsecured Creditors of the Transferor and Transferee
Companies.
9. The Petitioner Transferor Company and the Transferee
Company have thereafter filed the present Petition seeking
sanction of the Scheme of Amalgamation. Vide order dated
01st April, 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 „Business Standard‟ (English, Delhi Edition)
and „Jansatta‟ (Hindi, Delhi Edition). Affidavit of Service
and Publication has been filed by the Petitioners (filed on
16th May, 2014) showing compliance regarding service of
the Petition on the Regional Director, Northern Region and
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the Official Liquidator, and also regarding publication of
citations in the aforesaid newspapers on 24th April, 2014.
Copies of the newspaper cuttings, in original,containing the
publications have been filed along with the Affidavit of
Service.
10. In response to the notices issued, the Official Liquidator
sought information from the Petitioner Companies. Based
on the information received, the Official Liquidator has filed
his report dated 28th May, 2014 (also filed on 28 th May,
2014), wherein he 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 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 second
proviso of section 391(4) of the Act.
11. In response to the notices issued in the Petition, Mr. Alok
Samantarai, Learned Regional Director, Northern Region,
Ministry of Corporate Affairs has filed his Affidavit/Report
dated 26th May, 2014 (filed on 27th May, 2014). Relying on
Clause 12.1 of the Scheme of Amalgamation, he has stated
that, upon sanction of the Scheme of Amalgamation, all the
permanent staff/employees of the Transferor Company
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shall ultimately become the employees of the Transferee
Company without any break or interruption in their services
upon sanctioning of the Scheme of Amalgamation by the
Hon‟ble Court.
12. The Regional Director has raised the following concerns:
" 1. That the Deponent further craves leave to
submit that the instant Scheme of
Amalgamation the Appointed Date has been
fixed as 01.10.2013. The reason behind it as
well as significance to fix the Appointed
Date as 01.10.2013 may be clarified by the
petitioner companies before the Hon‟ble
Court.
2. That the Deponent further craves leave to
submit that in compliance of the Ministry‟s
circular No.1/2014 dated 15.01.2014, the
Chief Income Tax Commissioner, New
Delhi vide letter-dated 04.04.2014 was
requested to examine the Scheme of
Amalgamation and submit their
comments/observation, if any within 15
days. The Income Tax Department vide its
letter-dated 30.04.2014 has stated that the
said Companies has been required to furnish
full Scheme of Amalgamation and some
other related details so as to examine that the
interest of Revenue is protected the details
are called for and once received will be
analyzed and comprehensive report will be
filed with the Hon‟ble Court. The process of
said investigation may take some time and
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therefore not to be allowed the Scheme of
Amalgamation to proceed further for a
further one month as the investigation are
under process."
13. With regard to the appointed date, learned counsel for the
petitioner submits that the appointed date was fixed keeping
in view the financial exigencies of the petitioner company.
However, the petitioners submit that the date may be fixed
by the Court. Accordingly, the appointed date is fixed as 30th
September, 2013.
14. With regard to the concern raised by the Regional Director
of the Income Tax Department wherein the department has
sought for some more time. The standing counsel for the
Income Tax Department, on instructions from
Mr.J.L.Meena, ITO, Ward 13(IV), submits that the petitioner
be directed to furnish two undertakings. One that there are
no tax dues of the transferor company and in case there are
tax dues, the transferee company shall be liable for the dues
of the transferor company and secondly, that there are no
brought forward losses in the transferor company and in case
there are any brought forward losses, the same shall not be
claimed benefit of by the transferee/resultant company.
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15. Learned counsel appearing for the petitioners undertakes on
behalf of the petitioner that there are no tax dues of the
transferor company and further that in case there are any tax
dues, the transferee company shall continue to be liable for
the same. Learned counsel for the petitioner further submits
that the scheme in para 3.1 stipulates the said condition.
Learned counsel for the petitioner further undertakes that
there are no brought forward losses in the transferor
company and in case there are any brought forward losses,
the transferee/resultant company shall not claim benefit of
any brought forward losses.
16. In view of the undertaking, it is directed that the transferee
company shall be liable for tax dues if any of the transferor
company and the transferee company shall not be entitled to
claim any benefit of any brought forward losses of the
Transferor Company. In view of the above, the concerns of
Regional Director and the Income Tax Department are
addressed.
17. No objection has been received to the Composite Scheme of
Amalgamation from any other party. Mr. Pradeep Mangal,
Authorised Signatory of both the Transferor and Transferee
Companies has filed an affidavit dated 26th May, 2014, (also
filed on 26th May,2014) confirming that neither the
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Petitioner Companies nor their Legal Counsel has received
any objection pursuant to citations published in the
newspapers.
18. 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 Composite
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.
19. 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 undertaking, the property, rights and
powers of the Petitioner Transferor Company be transferred
to and vest in the Petitioner Transferee Company without
any further act or deed. Similarly, in terms of the Scheme, all
the liabilities and duties of the Petitioner Transferor
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Company be transferred to the Petitioner Transferee
Company without any further act or deed. Upon the Scheme
coming into effect, the Transferor Company shall stand
dissolved without winding up.
20. 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.
21. Learned Counsel for the Petitioners states that the Petitioner
Companies (collectively) would voluntarily deposit a sum of
Rs.75,000/- in the Common Pool fund of the Official
Liquidator within three weeks from today. The statement is
accepted.
22. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
MAY 30, 2014
HJ
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