Shade Capital Pvt. Ltd. vs .............
2014 Latest Caselaw 4395 Del

$~36
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+    CO.PET 316/2014
IN THE MATTER OF

SHADE CAPITAL PVT. LTD.                          ..... Petitioners

                Through: Mr. Sandeep Bhuraria, Advocate
                         for the Petitioner.

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

                           Mr. S.B. Gautam,        the   Official
                           Liquidator.

    CORAM:
    HON'BLE MR. JUSTICE SANJEEV SACHDEVA
                 ORDER

% 12.09.2014

SANJEEV SACHDEVA, J (ORAL)

Co. Appl. 2064/2014 (on behalf of the Official Liquidator for condonation of delay)

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

Learned counsel for the petitioner submits that petitioner has no objection to the delay being condoned in filing the report.

In view of the above, the delay is condoned and the report is taken on record.

The application is allowed.

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CO.PET 316/2014

1. This second motion joint Petition has been filed under sections 391(2) & 394 of the Companies Act, 1956 ("Act") seeking sanction to the Scheme of Amalgamation ("Scheme") of Shade Capital Private Limited (hereinafter referred to as Transferor Company) with SSKM Corporate Advisory Private Limited (hereinafter referred to as the Transferee Company) (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 Court.

3. The details with regard to the date of incorporation of 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 latest audited Accounts as at 31st December, 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

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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 CA (M) 72 of 2014 and CA no. 1254 of 2014 seeking directions of this Court for dispensation/convening of meetings. Vide order dated 25 th April, 2014 and order dated 11 th July, 2014 this Court allowed the Application and requirement of convening all the meetings of Shareholders, Un-secured Creditors of the Transferor Company and the Transferee Company and Secured Creditor of the Transferee Company. There are no Secured Creditors in the Transferor Company.

8. The Petitioner Companies had thereafter filed the present Petition seeking sanction to the Scheme of Amalgamation. Vide order dated 16 th May, 2014, notice of the Petition was directed to be issued to the Registrar of Companies, Regional Director, Northern Region, Ministry of Corporate Affairs, Noida and the Official Liquidator attached with this Court. Citations were also directed to be published in "Indian Express" (English, Delhi Edition)

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and "Jansatta" (Hindi, Delhi Edition). Affidavit of Service and Publication has been filed by the Petitioners 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 newspaper. 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 on the information received, learned Official Liquidator has filed his report dated 1 st September, 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 is 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 2 nd proviso of Section 394(1) of the Companies Act, 1956.

10. In response to the notice issued in the Petition, learned Regional Director, Northern Region, Ministry of Corporate Affairs has filed his Affidavit/Report dated 6 th August, 2014. Relying on the Scheme of Amalgamation,

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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 Para 4 of the affidavit, has stated that in Para-17 of Part-III of the Scheme the name of the Transferee Company immediately upon the scheme becoming effective shall be changed to Shade Capital Private Limited. Further Learned Regional Director submits that the name can be changed/altered only after following the procedure prescribed under the relevant provisions of the Companies Act, 2013.

12. In response to the aforesaid observation, the Petitioner Transferee Company has undertaken by way of an affidavit that it will comply with all the relevant procedure of the Companies Act, 2013 with regard to the change of name of the Transferee Company, immediately upon the Scheme becoming effective and will take other necessary steps in this regard, if any.

13. Further the Learned Regional Director in its affidavit his affidavit has observed that stated the Transferee Company

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may be asked to comply with the provisions of Section 65 read with Section 14 of the Companies Act, 2013 (corresponding to Section 31 of the Companies Act, 1956) in respect of the re-classification of Shares capital and consequential alteration in the Article of Association as proposed.

14. In response to the aforesaid observation, the Petitioner Transferee Company has further undertaken to comply with the provision of Section 65 read with section 14 of the Companies Act, 2013 in respect to the re-classification of Share capital and consequential alteration of Article of Association.

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

16. No objection has been received to the Scheme of Amalgamation from any other party. Mr. Ashok Kumar Arora, Director of the Transferor and Transferee 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.

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17. In view of the approval accorded by the Shareholders and Creditors (secured and Unsecured) of the Petitioner 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 Petitioner Companies will comply with the statutory requirements in accordance with law.

18. 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 of the Companies Act, 1956, all the property, rights and powers of the Transferor Company be transferred to and vest in the Transferee Company without any further act or deed. Similarly, 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 winding up.

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19. 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.

20. Learned Counsel for the Petitioner Companies (collectively) would voluntarily deposit a sum of Rs. 35,000 in the Common Pool fund of the Official Liquidator within three weeks from today. The said statement is accepted.

21. The Petition is allowed in the above terms.

Order Dasti.

SANJEEV SACHDEVA, J

SEPTEMBER 12, 2014 sv

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