Delhi High Court
Aradhana Foods And Juices Pvt. ... vs ......... on 11 September, 2014
Author: Sanjeev Sachdeva
$~21
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 195/2014
IN THE MATTER OF
ARADHANA FOODS AND JUICES PVT. LTD. AND ANR.
.....Petitioners
Through: Mr. Amit S. Chaddha Sr.Advocate
with Mr. Dheeraj Nair, Mr. Divyam
Agarwal and Ms. Pragya Chauhan
for the Petitioner.
Mr.P.K Mallik, Deputy Registrar of
Companies for the Regional
Director.
Mr. Mayank Goel, Advocate for the
Official Liquidator
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 11.09.2014
SANJEEV SACHDEVA, J (ORAL)
CA No.2056/2014
This is an application by the Regional Director
seeking condonation of delay in filing the reply.
For the reasons stated in the application, the
application is allowed and the delay in filing the reply is
condoned.
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The reply is directed to be taken on record.
CO.PET. 195/2014
1. This second motion joint Petition has been filed under
Sections 391 to 394 of the Companies Act, 1956 ("Act"),
seeking sanction to the Scheme of Amalgamation
("Scheme") of Aradhana Foods and Juices Private Limited
(Transferor Company No. 1) and Lehar Foods Private
Limited (Transferor Company No. 2)(collectively referred
as Petitioner Companies) with PepsiCo India Holdings
Private Limited (Transferee Company). A copy of the
Scheme has been enclosed with the Petition.
2. The registered offices of the Petitioner/Transferor
Companies are situated at New Delhi, within the
jurisdiction of this Court. The registered office of the
Transferee Company is situated in Gurgaon, Haryana. The
present joint petition has been filed only by the Petitioner
Transferor Companies.
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
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Petitioner Companies for the year ended 31 st March 2013
have also been enclosed with the Petition.
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 CA (M) No.
174 of 2013 seeking directions of this Court for
dispensation with the requirement of convening meetings
of the shareholders, secured and unsecured creditors. By
order dated January 9, 2014 in CA (M) No. 174 of 2013,
this Court allowed the Application and dispensed with the
requirement of convening meetings of Shareholders and
Creditors of the Petitioner No.2/ Transferor Company No.
2 and the Transferee Company. The Court however,
directed that a meeting of the unsecured creditors of the
Petitioner No.1/Transferor Company No. 1 with an
outstanding credit of more than Rs. 5 lac as on March31,
2012 ("Unsecured Creditors") be convened. In accordance
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with the directions of this Court, a meeting of the
Unsecured Creditors of the Transferor Company No. 1
was convened on February 25, 2014. The Unsecured
Creditors have duly approved the Scheme at the said
meeting. The Report has been filed by the Chairperson.
8. The Petitioner Companies had thereafter filed the present
Petition seeking sanction to the Scheme of Amalgamation.
By order dated March 25, 2014, notice in the Petition was
directed to be issued to the Regional Director, Northern
Region, Ministry of Corporate Affairs, Noida, the
Registrar of Companies and the Official Liquidator
attached with this Court. Citations were also directed to be
published in "Business Standard" (English Edition) and
"Jansatta" (Hindi Edition). An Affidavit of service and
publication has been filed by the Petitioners on May 12,
2014 showing compliance regarding service of the
Petition on the Regional Director, Northern Region 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 also 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
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on the information received, Official Liquidator has filed
his report dated July 31, 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, which are subject matter of dissolution, 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 second proviso of Section 394(1) of the
Companies Act, 1956.
10. The Regional Director has filed his Affidavit dated
September 1, 2014. Relying on the Scheme of
Amalgamation, he has stated that, upon sanction of the
Scheme, all the employees of the Transferor Companies
shall become the employees of the Transferee Company
without any break or interruption in their services. Further
the Regional Director submits that despite notice, the
Income Tax Authorities have not raised any objection
with regard to the scheme.
11. The Learned Regional Director in his Affidavit has
observed that the Petitioner Companies may be asked to
comply with the Accounting Treatment as prescribed
under Accounting Standard 14 issued by the Institute of
Chartered Accountants of India.
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12. In response to the aforesaid observation, the Petitioner
Companies have filed their Affidavit dated September 9,
2014 wherein they have undertaken confirmed that they
have complied with Accounting Standard 14 and have
further undertaken to comply with the same in future as
well.
13. Further the Regional Director in his Affidavit has
observed that the Transferee Company has not filed a
separate application before the Hon'ble High Court of
Punjab and Haryana.
14. In response to the said observation learned Counsel for the
Petitioner Companies submits that the Transferor
Companies are wholly owned subsidiary of the Transferee
Company. He submits that by order dated 9.1.2014 in
Company Appeal (M) No.174/2013 passed at the time of
first motion of the present scheme of amalgamation; this
Court had accepted the contention of the petitioners that
no separate application under Section 391-394 of the
Companies Act was required.
15. Further this issue has been considered and approved by
this Court in the case of M/s. CL Media Private Limited
(Company Petition No. 74 of 2014), Auto Tools India
Pvt. Ltd. [Co. Appl. (M) No. 41 of 2010], Sharat
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Hardware Industries Pvt. Ltd. [1978 (48) Com Cas 23
Delhi], Mahaamba Investments Ltd. vs. IDI Limited [2001
(105) Com Cas 16 Bombay and Andhra Bank Housing
Finance Ltd. [2004 (118) Com Cas 295 Andhra Pradesh].
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 of
Amalgamation from any other party. Mr. Divyam
Agarwal, Counsel for the Petitioners, has filed an affidavit
dated September 2, 2014 confirming that neither the
Petitioner Companies nor their 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/Transferor Companies;
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
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Petitioner/Transferor Companies will comply with the
statutory requirements in accordance with law.
19. A 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, all 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, all the liabilities and duties of the
Petitioner/ Transferor Companies be transferred to the
Transferee Company without any further act or deed.
Upon the Scheme coming into effect, the
Petitioner/Transferor Companies shall stand dissolved
without 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 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.
21. Learned Counsel for the Petitioner states that the
Petitioner Companies (collectively) would voluntarily
deposit a sum of Rs. 1,00,000/- in the Common Pool fund
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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
SV
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