Delhi High Court
Golden Strand Pvt Ltd vs ............ on 19 September, 2014
$~23
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET.577/2013
IN THE MATTER
GOLDEN STRAND PVT LTD. .....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 Golden Strand Pvt Ltd.
(hereinafter referred to as Transferor Company No. 1)
and Timeless Fashions Pvt Ltd (hereinafter referred to
as Transferor Company No. 2) with Golden Trends Pvt
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Ltd. (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 2012 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
Scheme of Amalgamation have also been placed on
record.
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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. 111 seeking directions of this Court for
dispensation/convening of meetings. Vide Order dated
6th September 2013, this Court allowed the Application
and dispensed with the requirement of convening
meetings of Shareholders and Unsecured Creditors of
the Petitioner Companies and the meeting of the sole
Secured Creditor of the Transferor Company No. 1 is
dispensed with. There are no Secured Creditor in
Transferor Company No. 2 and the Transferee
Company.
8. The Petitioner Companies have thereafter filed the
present Petition seeking sanction of the Scheme of
Amalgamation. Vide Order dated 8th November 2013,
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 10th July 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 dated
24th July, 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
raised a concern that the Appointed Dated as per the
Scheme is 01.04.2012 and since the Petitioner
Companies have prepared their Balance Sheet and
Profit & Loss Account on 31.03.2013 and filed the
same with the Registrar of Companies, the Appointed
Date be shifted to 01.04.2013 to avoid any revision of
Balance Sheet and Profit & Loss Account and other
returns including Income Tax Returns filed in the
earlier period.
12. Learned Counsel for the Petitioners submits that the
Appointed Date is 01.04.2012 and the Board of
Directors have given their consent on 27.01.2013 and
also the equity share holders have also approved the
scheme during the Financial Year 2012-13.
13. Learned Counsel for the Petitioners further submits that
all matters and events with respect to the approval of
the present Scheme by the Petitioner Companies and its
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shareholders took place in financial year 2012-13 and
accordingly, there is no justification whatsoever for any
change in the Appointed Date as sought to be
contended by the Regional Director.
14. In this regard, Learned Counsel relies upon the
judgments of this court in VODAFONE SPACETEL
LIMITED & ANR. DATED 03.07.2014 IN C.P. NO.
187 OF 2013 and of the BOMBAY HIGH COURT IN
M/S JINDAL IRON & STEEL DATED 02.09.2004 IN
C.P. NO.76 OF 2004 and of the GUJARAT HIGH
COURT IN SHREE BALAJI CINEVISION DATED
23.09.2009 IN O.J. APPEAL NO.65 OF 2009.
15. No objection to the Appointed Date has been raised by
any shareholder or creditor of the Petitioner
Companies. In view of the above, the facts do not
necessitate any change in the Appointed Date as sought
for by the Regional Director. However it is clarified
that in case there is any necessity of filing of any
revised returns with the Income Tax and other
Authorities. The petitioner would also pay all requisite
fees that may be payable in law for revising any returns
and the Registrar of Companies and the Income Tax
Authorities would also be at liberty to examine all
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returns on merits including the returns pertaining to the
past periods as may be permissible in accordance with
statutory provisions of the Companies Act and the
Income Tax Act.
16. The learned Regional Director has stated that a letter
has been written to the Income Tax Department.
However, no objection has been received from the
Income Tax Department.
17. In view of the aforesaid clarifications, the concerns of
the Regional Director have been duly addressed.
18. No objection has been received to the Scheme from any
other party. Ms. Malini Sud, Counsel for Petitioner
Companies, has filed an Affidavit dated 03.09.2014
confirming that neither the Petitioner Companies nor
she has received any objection pursuant to citations
published in the newspapers.
19. 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
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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.
20. 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.
21. 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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22. Learned Counsel for the Petitioner states that the
Petitioner Companies (collectively) would voluntarily
deposit a sum of Rs.50,000/- in the Common Pool fund
of the Official Liquidator within three weeks from
today. The statement is accepted.
23. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
SEPTEMBER 19, 2014
st
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