Delhi High Court
A R Co-Extruded Flims Private ... vs ............. on 3 November, 2014
$~40
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 143/2014
IN THE MATTER OF
A R CO-EXTRUDED FLIMS PRIVATE LIMITED
.....Petitioners
Through: Mr. Dilip Kumar Singh,
Advocate for the Petitioners.
Mr. Atma Sah, Assistant
Registrar of Companies for
the Regional Director.
Mr. Rajiv Behl, Advocate for
the Official Liquidator.
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 03.11.2014
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 of the Scheme of
Amalgamation ("Scheme") of A R Co-Extruded Films
Private Limited (hereinafter referred to as Transferor
Company No. 1) and A.R. Plastic Private Limited
(hereinafter referred to as Transferor Company No. 2)
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(hereinafter referred to as the Transferor Companies)
with M/s Gloria Finvest Private Limited (hereinafter
referred to as the Transferee Company) (hereinafter
collectively all companies are referred to as Petitioner
Companies). A copy of the Scheme has been enclosed
with the Petition.
2. The registered office of the Petitioner Companies is
situated at New Delhi, within the jurisdiction of this
Court.
3. Details with regard to the date of incorporation of the
Petitioner Companies, their 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 Accounts as at
31st March 2013 of the Petitioner 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
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. The Petitioner Companies had earlier filed C.A (M) 22
of 2014 seeking directions of this Court for
dispensation/convening of meetings. Vide Order dated
3rd February, 2014, this Court allowed the Application
and requirement of convening all the meetings of
Shareholders, Secured and Un-secured Creditors of the
Transferor and Transferee Companies were dispensed
with.
8. The Petitioner Companies had thereafter filed the
present Petition seeking sanction of the Scheme. By an
order dated 3 rd March, 2014, notice of the Petition was
directed to be issued to the Regional Director, Northern
Region and the Official Liquidator attached with this
Court, Citations were also directed to be published in
"Statesman" (English) and Jansatta (Hindi). An
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
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publication of citations in the aforesaid newspapers on
1st April, 2014. Copies of the newspaper cuttings, 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 Companies.
Based on the information received, the Official
Liquidator has filed his Report dated 22nd 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 that the affairs of the Transferor Companies 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 2 nd proviso of section 394(1) of the
Act.
10. In response to the notice issued in the Petition,
Regional Director, Northern Region, Ministry of
Corporate Affairs has filed his Affidavit/Report dated
4th August, 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
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Transferee Company without any break or interruption
in their services.
11. Further Regional Director in his Affidavit has observed
that since the Transferee Company is a NBFC and
registered with RBI, therefore the Transferee Company
is required to give an undertaking for all compliances
from the Reserve Bank of India.
12. In response to the aforesaid observations, Ms. Suman
Goel, authorized signatory of the Petitioner Transferee
Company in reply/undertaking affidavit dated 10th
October 2014 has submitted that Petitioner Transferee
Company undertakes to comply with all the
compliances as per the RBI guidelines.
13. It is directed that in case it is found that the Transferee
Company has violated any provision of the Reserve
Bank of India Act then the Directors of the Transferee
Company guilty of breaching the applicable provisions
of the Reserve Bank of India Act shall continue to be
liable irrespective of the sanction of the Scheme.
14. Further Regional Director in his Affidavit has observed
that Income Tax Authorities has submitted that said
authorities has no objection to the sanction of scheme
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subject to the condition that amalgamation process will
not be effected with the retrospectives dates.
15. Mr. Atma Sah, Assistant Registrar of Companies
submits that in case the appointed date is shifted to
01.04.2014, the objection of the Income Tax would be
redressed.
16. Learned Counsel for the Petitioner Companies, under
instructions, submits that the Petitioner has no
objection to the Appointed Date being shifted to
01.04.2014. In view of the above, the appointed date is
shifted to 01.04.2014.
17. Further Regional Director in his Affidavit has raised
another observation that Transferee Company has filed
its Annual Returns for the Financial Year ended
31.03.2010, 2011, 2012 & 2013 from time to time but
without enclosing therewith list of shareholders as on
that date, thus there is prima facie violation of section
159 (1) read with Schedule V to the Act and also
making liable the person who have filed such E-forms
under section 628 of the Act.
18. In response to the aforesaid observations learned
Counsel for the Petitioners submits that the Annual
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Returns for the Financial Year ended 31.03.2010, 2011,
2012 & 2013 filed with the Registrar of Companies is
only defective as per the press note (GSR No. 924(E)
dated 14.12.1992. In such cases, the companies are
advised to ensure that the corrected documents are filed
within the prescribed period along with filing fee. In
case of defected documents, the defects be removed
within 15 days on receipt of notice from the Registrar
of Companies. But in present case, no such notice was
ever received by the company. Moreover, all the
Annual Returns for the financial year ended
31.03.2010, 2011, 2012 & 2013 were duly approved
and registered by the Registrar of Companies. Further,
learned Counsel for Petitioners submits that the
Company has filed its revised Annual returns for the
financial year ended 31.03.2010, 2011, 2012 & 2013
under Company Law Settlement Scheme, 2014 which
grants immunity from prosecution for all the defaults
under Companies Act, 1956 and 2013 .
19. Further it is directed that the Reserve Bank of India,
Income Tax Authorities and the Registrar of
Companies are also at liberty to independently examine
the books of accounts irrespective of the sanction of the
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Scheme and in case any violation or breach of any
statutory provision is found, the directors of the
Transferor Companies and the Transferee Company
shall be liable irrespective of the sanction of the
Scheme.
20. In view of the aforesaid clarification and undertaking
and the concerns of the Regional Director and Income
Tax Authorities have been duly addressed.
21. No objection has been received to the Scheme from any
other party. Ms. Suman Goel, 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.
22. 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
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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.
23. 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 Transferor
Companies 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 Companies be transferred to the Transferee
Company without any further act or deed.
24. 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 department which may be
specifically required under any law.
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25. Learned Counsel for the Petitioners states that 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.
26. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
NOVEMBER 03, 2014
st
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