Delhi High Court
Genpact India & Anr vs ......... on 11 September, 2014
Author: Sanjeev Sachdeva
$~27
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 271/2014
IN THE MATTER OF
GENPACT INDIA & ANR .....Petitioners
Through: Mr. S. Ganesh Senior Advocate
with Mr. Rajeev Kumar
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)
1. This second motion joint petition has been filed under
sections 391 to 394 of the Companies Act, 1956
("Act") seeking sanction of Scheme of Amalgamation
("Scheme") between Genpact India Investments
(hereinafter referred to as Transferor Company) and
Genpact India (hereinafter referred to as Transferee
Company) (hereinafter all Companies collectively
referred to as Petitioner Companies) and their
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respective shareholders and creditors. A copy of the
Scheme has been enclosed with the Petition.
2. The registered office of the Petitioner Transferee
Company is situated at New Delhi, within the
jurisdiction of this Hon‟ble Court. The registered office
of the Transferor Company is situated in Republic of
Mauritius, outside the jurisdiction of this Hon‟ble
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 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
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Companies Act, 1956 is pending against the Petitioner
Companies.
7. The Petitioner Transferee Company had earlier filed
C.A (M) No 42 of 2014 seeking directions of this Court
for dispensing/convening the meetings. Vide Order
dated 7th March 2014, this Court allowed the
Application and dispensed with meeting of Equity
Shareholders and further directed to convene the
separate meetings of the Secured Creditors and
Unsecured Creditors of the Petitioner Transferee
Company. From the reports of the Chairpersons at the
aforesaid meetings, it is apparent that the Scheme was
approved unanimously by the Secured Creditors and
Unsecured Creditors participating in the meeting.
8. The Petitioner Transferee Company has thereafter filed
the present petition seeking sanction of the Scheme of
Amalgamation. Vide order dated 30 th April 2014,
notice in the petition was directed to be issued to the
Registrar of Companies and the Central Government
through the Regional Director. 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 the Transferee Company showing
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compliance regarding service of the petition on the
Regional Director, Northern Region and the Registrar
of Companies, and also regarding publication of
citations in the aforesaid newspaper on 28.05.2014.
Copies of the newspaper cuttings, in original,
containing the publications have been filed along with
the Affidavit of Service.
9. In response to the notice issued in the Petition, Mr.
A.K. Chaturvedi, learned Regional Director, Northern
Region, Ministry of Corporate Affairs has filed his
Affidavit dated 8 th July 2014. The learned Regional
Director submits that there is no employee‟s clause in
respect of the Transferor Company who may become
the employees of the Transferee Company without any
break or interruption in their services upon sanctioning
the Scheme of Amalgamation by the Hon'ble Court of
Delhi, which is an essential in a Scheme of
Amalgamation.
10. In response to the above said observation the
Petitioners has filed a reply Affidavit dated 06.09.2014
of Ms. Neha Nakra, Authorized Signatory of the
Petitioner Company stating that there are no employees
in the Transferor /Amalgamating Company, as it is a
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holding company, owning shares in the Amalgamated
Company/ Transferee Company .
11. Further learned Regional Director in its affidavit in
Para No. 5 has observed as follows:-
"That the Deponent further craves leave to
submit that Transferor Company was
incorporated under the Mauritius Act and in
terms of provisions of Section 4 (2) (b) Part-
II of the Fourteenth Schedule of the
Mauritius Act, the Transferor Company
shall will all reasonable dispatch make
Application Under Section 261 and 264 and
under applicable provisions of the
Mauritius Act for seeking sanction of the
Hon'ble Supreme Court of Mauritius to the
Scheme of Amalgamation subject to such
other terms and conditions as the Hon'ble
Supreme Court of Mauritius may deemed fit.
"
12. In response to the above said observation the
Petitioners has filed a reply Affidavit, states that Para
No. 4.6 of the Scheme of Amalgamation provides that:
"Amalgamating Company shall with all
reasonable dispatch make application under
Section 261 and 264 and other applicable
provisions of the Mauritius Act for seeking
sanction of the Supreme Court of Mauritius
to the Scheme subject to such other terms
and conditions as the Supreme Court of
Mauritius may deem fit."
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13. Further Petitioners submits that a petition has already
been filed with the Supreme Court in Mauritius which
is currently pending approval. Further learned Counsel
for Petitioners also submits that as per Para 17.2 of the
Scheme of Amalgamation, the Scheme is conditional
upon and subject to the sanction of the Hon'ble
Supreme Court of Mauritius.
14. The learned Regional Director has further stated that
notice was issued to the Income Tax Department.
However, no objection has been received from the
Income Tax Department.
15. Further, the petitioners in their affidavit have stated
that a copy of the petition and scheme was served on
the concerned Commissioner of Income Tax who had
thereafter sought additional information vide letter
dated 10.7.2014 which information was submitted to
him on 26.08.2014.
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. Ms. Neha Nakra,
Authorized Signatory of the Transferee Company, has
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filed an affidavit dated 12 th July, 2014, confirming that
neither the Petitioner Company nor its Legal Counsel
has received any objection pursuant to the 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 to the proposed scheme, there appears
to be no impediment to the grant of Sanction to the
Scheme.
19. Further, this Court by dated 16.05.2012 in CO.PET No.
82/2012 titled New Delhi Television Limited relying on
the Gujarat High Court decision in Essar Shipping
Ports and Logistics Ltd., In re [2009] 149 CompCas
417 (Guj) approved a similar Scheme of Amalgamation
wherein the Transferor Company was incorporated in
Mauritius.
20. It is directed that the Petitioner Companies shall
comply with all statutory requirements in accordance
with law. Certified copy of the order will be filed with
the Registrar of Companies within 30 days from the
date of receipt of the same.
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21. Further, since the Transferor Company is incorporated
in Republic of Mauritius, outside the jurisdiction of this
Hon'ble Court, this order is subject to the compliance
of law applicable in Mauritius in respect to the
Transferor Company.
22. 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.
23. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
SEPTEMBER 11, 2014
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