Smarttrust Infosolution Private ... vs ...........
2014 Latest Caselaw 4359 Del

$~30
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+    CO.PET.387/2014
IN THE MATTER OF

SMARTTRUST INFOSOLUTION PRIVATE LIMITED
AND ANR.                        .....Petitioners

                 Through: Ms. Beena Rani Panday with Mr.
                          Rohit Aggarwal Advocate for the
                          Petitioner.

                            Mr.    P.K.    Malik,  Deputy
                            Registrar of Companies for the
                            Regional Director

                            Mr. Rajiv Bhel, Advocate for the
                            Official Liquidator.

     CORAM:
     HON'BLE MR. JUSTICE SANJEEV SACHDEVA
                ORDER

     %          11.09.2014

SANJEEV SACHDEVA, J (ORAL)
CA No.1972/2014

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. 387/2014

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 of Smarttrust Infosolution Private Limited (hereinafter referred to as Transferor Company) with Giesecke & Devrient India Private Limited (hereinafter referred to as 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 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 80/2014 seeking direction of this Court for dispensation of the requirement of convening the meetings of Equity Shareholders and Unsecured Creditors of the Petitioner Companies. By Order dated 05.05.2014, this Court allowed application and dispensed with the requirement of convening meeting of the Equity Shareholders and Unsecured Creditors of the Petitioner Companies.

8. The Petitioner Companies have thereafter filed the present Petition seeking sanction of the Scheme of the Amalgamation. By Order dated 30.05.2014, a notice in the petition was directed to be issued to the to the Registrar of Companies (RoC), and to the Central Government, Regional Director (RD), Northern Region

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and the Official Liquidator (OL). Citations were also directed to be published in „Business Standard‟ (English and Hindi). Affidavit of Service and Publication dated 12.08.2014 has been filed showing compliance regarding service of the petition on RD, Northern Region, the RoC and the OL and also regarding publication of citation in the aforesaid newspapers. Copies of the newspaper cutting, in original, containing the publication 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 29.08.2014 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.

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10. In response to the notice issued in the petition, Regional Director, Northern Region, Ministry of corporate Affairs has filed his Affidavit/report Dated 29.08.2014. Relying on clause 7.1 of Part III of the scheme of Amalgamation, he stated that all the staff/employees of the transferor company shall become the employees of the Amalgamated Company without any break or interruption in their services upon sanction of the scheme of Amalgamation by the Hon‟ble court.

11. Further learned Regional Director in his Affidavit has observed that the exchange ratio has been determined by M/s Joy Financial Consulting Pvt. Ltd., which is not a firm of Chartered Accountants and that the ratio of exchange i.e. Proposed allotment of shares has not been worked out by an independent valuer. Normally, the valuation of shares and swap ratio are calculated by the professional firm of Chartered Accountant.

12. In response to the aforesaid observation, Mr Neeraj Avlash, Authorised Signatory for Petitioner Transferee Company has filed his Affidavit dated 01.09.2014, wherein it is submitted that the valuation report was signed by Mr. Joy Kumar Jain, Managing Director who

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is a Practicing Chartered Accountant of the firm M/s. Joy Financial Consulting, which has been registered with the Institute of Chartered Accountants of India. The Certificate of Registration as well as Certificate of Practice of Mr. Joy Kumar Jain has been filed.

13. Further learned Regional Director in his Affidavit has observed that according to the shareholding pattern of both the Transferor and Transferee Company 100% shares are held by Foreign Companies. It is submitted that both the Transferor and Transferee Company may be asked to give an undertaking for all compliances from the Reserve Bank of India (RBI) as required under FEMA for above transactions involving foreign banks/entities, if deemed fit and proper by the Hon‟ble Court.

14. In response to the aforesaid observation, Learned Counsel for Petitioners submits that the Transferee Company has filed its Reply Affidavit dated 01.09.2014 undertaking that the Petitioner Companies shall comply with all the applicable compliances and regulations relating to the RBI and under FEMA.

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15. Further learned Regional Director in his Affidavit submits that despite notice, Income Tax Authorities have not raised any objections with regard to the sanction of the Scheme.

16. In view of the aforesaid clarifications and undertaking given by the Petitioners, the concerns of the Regional Director have been duly addressed.

17. No objection has been received to the Scheme from any other party. Mr. Neeraj Avlash, and Mr. Gavendra Kumar Sharma, Authorised Signatories of the Petitioner Companies, have filed an Affidavit dated 01.09.2014, confirming that neither the Petitioner Companies nor their Legal Counsel has received any objection pursuant to citations published in the newspapers.

18. 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 impediment to the grant of Sanction to the Scheme. Consequently, Sanction is hereby granted to the

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Scheme under Sections 391 and 394 of the Companies Act, 1956. The Petitioner Companies will comply with the statutory requirements in accordance with law.

19. 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 Company 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 Company be transferred to the Transferee Company without any further act or deed. Upon the Scheme coming into effect, the Transferor Company shall stand dissolved without following the process of winding up.

20. 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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21. Learned Counsel for the Petitioner states that the Petitioner Companies (collectively) would voluntarily deposit a sum of Rs. 75,000/- in the Common Pool fund of the Official Liquidator within three weeks from today. The statement is accepted.

22. The Petition is allowed in the above terms.

Order Dasti.

SANJEEV SACHDEVA, J

SEPTEMBER 11, 2014

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