Delhi High Court
Caraf Builders & Constructions ... vs ........... on 10 October, 2014
$~18
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET.186/2014
IN THE MATTER OF
CARAF BUILDERS & CONSTRUCTIONS PRIVATE
LIMITED AND ANR. ..... Petitioner
Through: Mr. U.K. Chaudhary, Senior
Advocate with Mr. Naveen
Dahiya and Mr. Karan Malhotra,
Advocates for the Petitioner.
Mr. Atma Sah, Assistant
Registrar of Companies for the
Regional Director.
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 10.10.2014
SANJEEV SACHDEVA, J (ORAL)
1. This second motion Petition has been filed under
section 391 to 394 of the Companies Act, 1956 ("Act")
seeking sanction of a Scheme of
Arrangement/Demerger ("Scheme") between Caraf
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Builders & Constructions Private Limited
(Demerged/Petitioner Company) and DLF Cyber City
Developers Limited (Resulting Company) (collectively
referred to as Petitioner Companies). A copy of the
Scheme has been enclosed with the Petition.
2. The registered offices Demerged/Petitioner Company is
situated within the National Capital Territory of Delhi,
within the jurisdiction of this Hon'ble Court. The
registered office of the Resultant Company is situated
in the State of Haryana, outside the jurisdiction of this
Hon'ble Court.
3. The details of the respective dates of incorporation of
the Demerged/Petitioner Company, its authorized,
issued, subscribed and paid up capital have been given
in the Petition.
4. The copies of the Memorandum and Articles of
Association as well as the Annual Accounts for the
year ended on 31st March 2013 of the
Demerged/Petitioner Company have also been enclosed
with the Petition.
5. The copies of Resolutions passed by the Board of
Directors of the Petitioner Companies approving the
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Scheme of Arrangement have also been filed along
with the Petition.
6. Learned Counsel for the Petitioner 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. 34 of 2014 seeking directions of this Court for
dispensation/convening of meetings. Vide Order dated
21.02.2014, this Court allowed the Application and
dispensed with the requirement of convening meetings
of the Shareholders and Creditors of the Demerged
Company. Since there were no Secured Creditors in
Demerged/Petitioner Company, the requirement for
convening meeting of the Secured Creditors does not
arise.
8. The Petitioner Companies have thereafter filed the
present Petition seeking sanction of the Scheme. Vide
Order dated 18.03.2014, notice of the Petition was
directed to be issued to the Registrar of Companies,
Northern Region. Citations were also directed to be
published in "Business Standard" (English) and
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"Jansatta" (Hindi). Affidavit of Service and Publication
has been filed by the Demerged/Petitioner Company
showing compliance regarding service of the Petition
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. Learned Counsel for the Petitioner submits that a
separate Second Motion Petition was filed before the
Hon'ble High Court for the States of Punjab &
Haryana, which has been sanctioned by the Hon'ble
High Court for the States of Punjab & Haryana vide its
Order dated 12.09.2014.
10. In response to the notices issued, the Regional Director
has filed its Affidavit dated 01.09.2014. Relying on
Clause 3.13 of Part C of the Scheme he has stated in
Para No. 3 that all the staff/employees of all the De -
merged Company shall become the employees of the
Resulting Company without any break or interruption
in their services upon sanctioning of the Scheme of
Arrangement by the Hon'ble Court. The Regional
Director has stated that a letter has been written to the
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Income Tax Department. However, no objection has
been received from the Income Tax Department.
11. Further, the Regional Director in his Affidavit has
observed that Para 15 of Part - F of the Scheme
provides that the de-merger shall be in accordance with
Section 2(19AA) of the Income Tax Act and that the
Petitioner be directed to file an undertaking to comply
with those conditions.
12. In reply to the above observation, a compliance
Affidavit has been filed by Mr. Sanjeev Gemawat,
dated 1 st October 2014, undertaking on behalf of the
Petitioner to comply with the provisions of Section
2(19AA) of the Income Tax Act, 1961 and all other
applicable laws and rules.
13. In view of the aforesaid undertaking given by the
Petitioner, the concern of the Regional Director has
been duly addressed.
14. No objection has been received to the Scheme from any
other party. Mr. Naveen Dahiya, Counsel for the
Petitioner has filed an Affidavit dated 1st October 2014,
confirming that neither the Petitioner Company nor he
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has received any objection pursuant to citations
published in the newspapers.
15. In view of the approval accorded by the Shareholders
and Creditors of the Demerged/Petitioner Company,
representation/report filed by the Regional Director,
Northern Region to the proposed Scheme, there appears
to be no impediment to the grant of Sanction to the
Scheme. Consequently, Sanction is hereby granted to
the Scheme under sections 391 and 394 of the
Companies Act, 1956. The Demerged/Petitioner
Company will comply with the statutory requirements
in accordance with law.
16. Certified copy of the order will be filed with the
Registrar of Companies within 30 days from the date of
receipt of the same. In terms of Sections 391 and 394
of the Act, and in terms of the Scheme, the property,
rights and powers of the Demerged/Petitioner Company
pertaining to the Demerged Undertaking i.e. "Non-SEZ
Business Undertaking" be transferred to and vest in the
Resulting Company without any further act or deed.
Similarly, in terms of the Scheme, all the assets and
liabilities pertaining to the Demerged Undertaking i.e.
"Non-SEZ Business Undertaking" of the
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Demerged/Petitioner Company shall stand vested in the
Resulting Company without any further act or deed.
Upon the Scheme coming into effect, the
Demerged/Petitioner Company shall continue to be in
existence with its Retained/Residual Business not
forming the part of the Demerged Undertaking.
17. 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. The statement is
accepted.
18. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
OCTOBER 10, 2014
st
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