Delhi High Court
Sare Marketing Pvt Ltd And Ors vs ........... on 19 September, 2014
$~35
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET.176/2014
IN THE MATTER
SARE MARKETING PVT LTD AND ORS .....Petitioners
Through: Ms.Aditi Sharma, Advocate for
the Petitioners.
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
% 19.09.2014
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 the Scheme of
Amalgamation ("Scheme") of Sare Marketing Private
Limited (hereinafter referred to as Transferor Company
No. 1), Aggressive Traders Private Limited(hereinafter
referred to as Transferor Company No. 2), Emergent
Infotech Private Limited(hereinafter referred to as
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Transferor Company No. 3), Anchor Agro Private
Limited(hereinafter referred to as Transferor Company
No. 4) and Petals Exim Private Limited(hereinafter
referred to as Transferor Company No. 5) with Sumant
Investments 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 office of the Petitioner Companies is
situated at New Delhi, within the jurisdiction of this
Court.
3. Details with regard to the date of incorporation of the
Petitioner Companies, their authorized, issued,
subscribed and paid up capital have been given in the
Petition.
4. Copies of the Memorandum and Articles of
Association as well as the latest audited Accounts as at
31st March 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. It has been submitted 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. 29 seeking directions of this Court for
dispensation/convening of meetings. Vide Order
dated18th February 2014, this Court allowed the
Application and dispensed with the requirement of
convening meetings of Shareholders and Unsecured
Creditors of the Petitioner Companies. There are no
Secured Creditors of the Petitioner Companies.
8. The Petitioner Companies have thereafter filed the
present Petition seeking sanction of the Scheme of
Amalgamation. Vide Order dated 14th March 2014,
notice in the Petition was directed to be issued to the
Regional Director, Northern Region and the Official
Liquidator. Citations were also directed to be published
in the "Business Standard" (English) and "Jansatta"
(Hindi). Affidavit of Service and Publication has been
filed by the Petitioners showing compliance regarding
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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 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 8th May
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 2nd proviso of section 394(1) of the
Act.
10. In response to the notice issued in the Petition, learned
Regional Director, Northern Region, Ministry of
Corporate Affairs has filed his Affidavit/Report
dated26th May 2014. Relying on the Scheme of
Amalgamation, he has stated that, upon sanction of the
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Scheme, all the employees of the Transferor
Companies shall become the employees of the
Transferee Company without any break or interruption
in their services.
11. The learned Regional Director in its Affidavit has
submitted that the Reserve Bank of India was requested
vide letter dated 13.05.2014 to re-examine the issue
relating to grant of exemption to the Transferee
Company from NDSI-NBFC Company.
12. The learned Regional Director further submits that the
Company had not complied with Para 18 of NBFC
(Non-deposit Accepting or Holding) Companies
Prudential Norms (Reserve Bank) Directions, 2007.
13. Mr. Ranjeesh Kumar Singh, Assistant ROC, submits
that vide letter dated 21.05.2014, the Reserve Bank of
India has stated that the Petitioner, namely M/s.
Sumant Investments Pvt. Ltd., is eligible for exemption
from CIC Status.
14. In view of the letter of the Reserve Bank of India, the
above concerns raised by the Regional Director in his
Affidavit dated 26.05.2014 do not survive.
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15. The learned Regional Directorfurther submits that a
letter dated 28.04.2014 was received from the Income
Tax Authorities requesting for at least one month time
form the Court. However, no further communication
has been received from the Income Tax Department.
He submits that till date no objection has been received
from the Income Tax Department.
16. In view of the aforesaid clarifications, the concerns of
the Regional Director have been duly addressed.
17. No objection has been received to the Scheme from any
other party. Ms. Aditi Sharma, learned counsel for
Petitioner Companies, has filed an affidavit dated
15.09.2014 confirming that neither the Petitioner
Companies nor she 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/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.
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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.
19. 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, and in terms of
the Scheme, the whole or part of the undertaking, 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, 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.
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. 1,00,000/- 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 19, 2014
st
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