Delhi High Court
R E Rogers India Pvt Ltd vs .............. on 28 October, 2014
Author: Sanjeev Sachdeva
$~17
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 352/2014
IN THE MATTER OF R E ROGERS INDIA PVT LTD
.....Petitioners
Through: Mr. Rajeev K Goel, Advocate for
the Petitioners.
Mr. Atma Sah, Assistant
Registrar of Companies for the
Regional Director.
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 28.10.2014
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
Arrangement ("Scheme") for De-merger of Real Estate
Business of R E Rogers India Pvt. Ltd (hereinafter
referred to as Demerged Company) into Arya RKR
India Pvt. Ltd. (hereinafter referred to as Resulting
Company) (hereinafter collectively referred to as
Petitioner Companies). A copy of the Scheme has been
enclosed with the Petition.
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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.
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) 61
of 2014 seeking directions of this Court for
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dispensation/convening of meetings. Vide order dated
4th April, 2014, this Court allowed the Application and
requirement of convening meetings of Shareholders of
the Demerged Company and the Resultant Company
were dispensed with. The Resultant Company does not
have any Secured and Un-secured Creditors. This Court
further directed for convening a meeting of Un-secured
Creditors of the Demerged Company under its
supervision to consider and approve the proposed
Scheme of Arrangement. In compliance with the order
of this Court, meeting of Un-secured Creditors of the
Demerged Company was duly convened and held on
17th May, 2014 under the supervision of this Court and
the Scheme of Arrangement was unanimously
approved and adopted in the said meeting.
8. The Petitioner Companies had thereafter filed the
present Petition seeking sanction to the Scheme of
Arrangement. Vide order dated 26 th May, 2014, notice
of the Petition was directed to be issued to the Regional
Director, Northern Region. 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
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the Petitioners showing compliance regarding service
of the Petition on the Regional Director, Northern
Region 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 in the Petition, learned
Regional Director, Northern Region, Ministry of
Corporate Affairs has filed his Affidavit/Report dated
18th September, 2014. Relying on the Scheme of
Arrangement, he has stated that, upon sanction of the
Scheme, all the employees of the Demerged Business
of the Demerged Company shall become the employees
of the Resultant Company without any break or
interruption in their services. Further Learned Regional
Director submits that despite of notice, Income Tax
Authorities has not raised any observation with regard
to the Scheme.
10. Further learned Regional Director in its Affidavit dated
18th September 2014 has raised an observation that
certain charges are proposed to be transferred from the
Demerged Company to the Resulting Company. Name
of the Company cannot be substituted in the Charge
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Documents filed with the ROC, hence the Petitioner
Demerged Company and Resultant Company may be
asked to file necessary forms for satisfaction and
creation of charge.
11. In response to the aforesaid observation the Petitioner
Demerged Company in the Reply Affidavit dated 16 th
October, 2014, has submitted that charge has been
created on some assets of the Demerged Company
which are proposed to be demerged into the Resultant
Company pursuant to the Scheme of Arrangement. The
Resultant Company will have to create charge in favour
of the lenders and file necessary form(s) with the
Registrar of Companies. Further learned Counsel for
petitioners submits that Para 2.1.5 of the Scheme of
Arrangement already provides that the Demerged
Company and Resultant Company will file requisite
form(s) with the Registrar of Companies for creation,
modification and/or satisfaction of charge(s), to the
extent required, to give effect to the provisions of the
Scheme. The Petitioners have confirmed and
undertaken that necessary forms will be filed with the
ROC by the Demerged and Resultant Companies with
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regard to creation, modification or satisfaction of
charges, to the extent required.
12. Further learned Regional Director in its affidavit has
raised another observation that Para 2.1.6 of part 2 of
the Scheme provides that de-merger shall be in
accordance with section 2(19AA) of the Income Tax
Act, 1961. The Petitioner Companies may be asked to
submit an undertaking to comply with the conditions of
Section 2(19AA).
13. In response to the aforesaid observation the Petitioner
Demerged Company in the Reply Affidavit has
submitted that with regard to the provisions of section
2(19AA) of the Income Tax Act, 1961, it was
submitted that the Scheme of Arrangement already
provides that the de-merger shall be in accordance with
section 2(19AA) of the Income Tax Act, 1961 and
other applicable provisions, if any. It is further
submitted that the Petitioners have again confirmed and
undertaken that the Petitioner Companies will comply
with all the conditions of section 2(19AA) of the
Income Tax Act, 1961 relating to the Demerger.
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14. In view of the aforesaid clarifications and undertaking
given by the Petitioners, that the concerns raised by the
learned Regional Director have been duly addressed.
15. No objection has been received to the Scheme of
Arrangement from any other party. Mr. Raj Kumar
Sharma, Whole Time Director of the Demerged
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/report filed by the Regional Director,
Northern Region to the proposed Scheme of
Arrangement, there appears to be no impediment to the
grant of sanction to the Scheme of Arrangement.
Consequently, sanction is hereby granted to the Scheme
of Arrangement under sections 391 and 394 of the
Companies Act, 1956. The Petitioner Companies will
comply with the statutory requirements in accordance
with law.
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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; 100 to 104 of the Companies
Act, 1956, all the property, rights and powers of the
Real Estate Business of the Demerged Company be
transferred to and vest in the Resultant Company
without any further act or deed. Similarly, all the
liabilities and duties of the Real Estate Business of the
Demerged Company be transferred to the Resultant
Company without any further act or deed.
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.
19. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
OCTOBER 28, 2014/st
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