Mayank Auto Engineers Private ... vs ..............
2014 Latest Caselaw 4218 Del

$~39
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+    CO.PET. 337/2014
IN THE MATTER OF
MAYANK AUTO ENGINEERS PRIVATE LIMITED AND
ORS                              ..... Petitioners

           Through: Mr. Saurabh Kalia and              Harshit
                    Agarwal for the Petitioner.

                        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

     %          08.09.2014
SANJEEV SACHDEVA, J (ORAL)

CA No.1955/2014

This is an application by the Official Liquidator seeking condonation of delay in filing the report.

For the reasons stated in the application, 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. 337/2014

1. This second motion joint Petition has been filed under section 391 to 394 of the Companies Act, 1956 ("Act") seeking sanction of a Scheme of Amalgamation ("Scheme") of Mayank Auto Engineers Private Limited (Transferor No. 1) and Value Add Financial Advisors Private Limited (Transferor No. 2) with Minda Capital Limited (Transferee Company) (hereinafter all Companies collectively 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 High Court.

3. The details of the respective dates of incorporation of the Petitioner Companies, their 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 of the Petitioner Companies for the year ended 31 st March 2013 have also been enclosed with the Petition.

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5. The copies of Resolutions passed by the Board of Director of the Petitioner Companies approving the Scheme of Amalgamation have also been filed along with the Petition.

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. 74 of 2014 seeking directions of this Court for dispensation of the meetings of shareholders of the Transferor Companies and Transferee Company and for dispensation of the meetings of Secured and Unsecured Creditors of the Transferor Companies and Transferee Company. Vide Order dated 25.04.2014, this Court allowed the application and dispensed with the requirement of convening meetings of Equity Shareholders of the Transferor Companies and Transferee Company. The Hon'ble Court was also pleased to dispense with the requirement of convening meetings of Secured and Unsecured Creditors of the Transferor Companies and Transferee Company.

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8. The Petitioner Companies have thereafter filed the present petition seeking sanction of the Scheme. Vide Order dated 22.05.2014, notice in the Petition was directed to be issued to the Regional Director, Northern Region, Ministry of Corporate Affairs and the Official Liquidator. Citations were also directed to be published in "Business Standard" (English) and "Business Standard" (Hindi). An Affidavit of Service and Publication has been filed by the petitioners showing compliance regarding service of the petition on the Regional Director, the Registrar of Companies and the Official Liquidator and also regarding Publication of Citations in the aforesaid newspapers on 28.06.2014. Copies of the newspapers cuttings in original containing the publications have been filed with the affidavit of compliance.

9. 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 27 th August, 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

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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 notices issued in the petition, the learned Regional Director has filed an Affidavit dated 27.08.2014, wherein in Para 3 of the Affidavit it has been stated that as per Para 7(a) of Part-II of the Scheme of Amalgamation all the staff/employees of all the Transferor Companies shall become the employees of the Transferee Company without any break or interruption in their services upon sanctioning of the Scheme by the Hon'ble Court. Further, the learned Regional Director submits that despite notice, the Income Tax Authorities have not raised any objection with regard to the Scheme.

11. Further learned Regional Director in its Affidavit has observed that on perusal of the shareholding pattern of the Transferor Company No. 1, it has been observed that 44.44% shares are held by the foreign companies. Therefore the Transferor Company No. 1 may be asked to give an undertaking for all compliances from Reserve

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Bank of India as required under FEMA for above transactions involving foreign banks/entities.

12. In response to the aforesaid observation, the Petitioner Companies have filed an Affidavit dated 29.08.2014 stating that the Petitioner Companies abide by the said statement and undertakes that the Petitioner Companies will do all the necessary compliances of Reserve Bank of India, as required under FEMA for transactions involving foreign banks/entities.

13. In view of the aforesaid clarification and 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, the Counsel for the Petitioner Companies has stated that neither he nor the client has received any objection pursuant to the citations published in the newspapers.

15. In view of the approval accorded by the Shareholders and Creditors of the Petitioner Companies, representation/report filed by the Regional Director, Northern Region and Official Liquidator attached with this Court to the proposed scheme, there appears to be no

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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 Petitioner Companies 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 the provisions of sections 391 and 394 of the Act, and in terms of the Scheme the whole of the undertaking, the properties, 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. Upon the Scheme coming into effect, the Transferor Companies shall stand dissolved without following the process of winding up.

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

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with any other department which may be specifically required under any law.

18. Learned Counsel for the Petitioners states that the Petitioner Companies would (collectively) voluntarily deposit a sum of Rs.50,000/- in the Common Pool fund of the Official Liquidator within three weeks from today. The statement is accepted.

19. The Petition is allowed in the above terms.

Order Dasti.

SANJEEV SACHDEVA, J SEPTEMBER 08, 2014 sv

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