Delhi High Court
H H Auto Private Limited vs ............. on 18 November, 2014
Author: Sanjeev Sachdeva
$~30
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 407/2014
IN THE MATTER OF
H H AUTO PRIVATE LIMITED .....Petitioners
Through: Mr. Mukesh Sukhija, Advocate
for the Petitioners.
Mr. Rajneesh Kumar Singh,
Assistant Registrar of Companies
for the Regional Director.
Mr. Rajiv Behl, Advocate for the
Official Liquidator.
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 18.11.2014
SANJEEV SACHDEVA, J (ORAL)
CA No. 2641/2014 (application seeking condonation
of delay on behalf of the Regional Director)
This is an application by the Regional Director
seeking condonation of delay in filing the report.
Learned Counsel for the Petitioners submits that
he has no objection to the delay being condoned.
The application is allowed and the delay in filing
the report is condoned.
The report is directed to be taken on record.
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CO.PET. 407/2014
1. This second motion joint petition has been filed under
sections 391(2) & 394 of the Companies Act, 1956
("Act") seeking sanction of the Scheme of
Amalgamation ("Scheme") of M/s H H Auto Private
Limited (hereinafter referred to as Transferor
Company) with Viney Corporation Private Limited
(hereinafter referred to as the Transferee Company)
(hereinafter referred to as Petitioner Companies). A
copy of the Scheme has been enclosed with the
Petition.
2. The registered offices of the Petitioner Companies are
situated at New Delhi, within the jurisdiction of this
Hon‟ble 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 for
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the year ending 31st March 2013 of 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.
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)
No. 98 of 2014 seeking directions of this Court for
dispensation/convening the meetings. Vide order dated
28th May 2014, this Court dispensed with the
requirement of convening meetings of Shareholders of
the Petitioner Companies, the Secured Creditors and
Un-secured Creditors of the Transferee Company.
Since there were no Secured Creditors and Un-secured
Creditors in the Transferor Company, requirement for
convening a meeting of the same did not arise.
8. The Petitioner Companies has thereafter filed the
present Petition seeking sanction of the Scheme of
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Amalgamation. Vide order dated 8th July 2014, notice
in the petition was directed to be issued to the Registrar
of Companies and the Central Government through
Regional Director and the Official Liquidator. Citations
were also directed to be published in „Business
Standard‟ (English, Delhi Edition) and „Business
Standard‟ (Hindi, Delhi Edition). Affidavit of Service
and Publication has been filed by the Petitioner
Companies showing compliance regarding service of
the petition on the Regional Director, Northern Region,
the Registrar of Companies, 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
been filed along with the Affidavit of Service.
9. Pursuant 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 11th September,
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 Company do not
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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 notices issued in the petition, Mr.
A.K. Chaturvedi, learned Regional Director, Northern
Region, Ministry of Corporate Affairs has filed his
Affidavit dated 5th November 2014. Relying on Clause
8 of the Scheme Amalgamation he has stated he has
stated that, upon sanction of the Scheme of
Amalgamation, all the employees of the Transferor
Companies shall 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. Further, learned
Regional Director submits that despite notice, Income
Tax Authorities has not raised any observation with
respect to the Scheme.
11. Further, learned Regional Director has submitted that
the Registrar of Companies has pointed out certain
observations, which are found to be of serious nature
and the Registrar of Companies has been requested to
examine the balance sheets of the Transferor and the
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Transferee Companies on the non-invasive method for
the last three years.
12. It is clarified that sanction of the Scheme will not come
in the way of the Registrar of Companies examining
the balance sheets of Transferor Company and
Transferee Company on the non-invasive method for
the last three years. It is further directed that in case
any violation or breach of any statutory provision is
found, the Transferee Company and/or the Directors or
Officers of the Transferor Company and Transferee
Company shall be liable irrespective of the sanction of
the Scheme.
13. No objection has been received to the Scheme from any
other party. Mr. Mahesh Agarwal, the Director of the
Transferor Company and Mr. Anil Prakash Agarwal,
Director of the Transferee Company have filed an
affidavit dated 11th November 2014, confirming that
neither the Petitioner Company nor its Legal Counsel
has received any objection pursuant to the citations
published in the newspapers.
14. In view of the approval accorded by the Shareholders
and Creditors of the Petitioner Companies;
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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.
15. 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.
16. It is, however, clarified that this order will not be
construed as an order granting exemption from
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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..
17. 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.
18. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
NOVEMBER 18, 2014
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