Delhi High Court
Hari Om Narayan Alloys Private ... vs ............... on 26 September, 2014
$~49
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET.238/2014
IN THE MATTER OF
HARI OM NARAYAN ALLOYS PRIVATE LIMITED
.....Petitioners
Through: Mr. Ashish Middha, Advocate for
the Petitioners.
Mr. Atma Sah, Assistant
Registrar of Companies for the
Regional Director.
Mr. Rajiv Behl, Advocate for the
Official Liquidator.
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 26.09.2014
SANJEEV SACHDEVA, J (ORAL)
CA No. 2253/2014 (application for condonation of
delay)
This is an application by the Official Liquidator
seeking condonation of delay in filing the report.
For the reasons stated in the application, the
application is allowed and the delay in filing the report
is condoned.
The report is directed to be taken on record.
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CA No.855/2014 (exemption)
Exemption allowed subject to all just exceptions.
CO.PET.238/2014
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 Hari Om Narayan Alloys
Private Limited (hereinafter referred to Transferor
Company No. 1), Govardhan Metals Private
Limited(hereinafter referred to Transferor Company
No.2), Hari Om Narayan Steels Private Limited
(hereinafter referred to Transferor Company No. 3)
Nandgaon Alloys Private Limited (hereinafter referred
to Transferor Company No. 4), Mukutwala Ferro
Alloys Private Limited (hereinafter referred to
Transferor Company No. 5), Barsana Alloys Private
Limited (hereinafter referred to Transferor Company
No .6) and Asth Sakhi Alloys Private Limited
(hereinafter referred to Transferor Company No. 7)
with SRU Steels Limited (hereinafter referred to
Transferee Company) (hereinafter all Companies
collectively referred to as Petitioner Companies). A
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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
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.
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7. The Petitioner Companies had earlier filed C.A (M)
No. 21 seeking directions of this Court for
dispensation/convening of meetings. Vide Order dated
28th January 2014, this Court allowed the Application
and requirement of convening all the meetings of
Shareholders except the meeting of Shareholders of
Transferee Company and Creditors of the Transferor
and Transferee Companies were dispensed with. The
meeting of shareholders was convened and held the
Shareholders unanimously approved the Resolution
approving the Scheme of Amalgamation.
8. The Petitioner Companies have thereafter filed the
present Petition seeking sanction of the Scheme of
Amalgamation. Vide Order dated 21st May 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 Hindi 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.
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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 16th August 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 2 nd 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
11th July 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
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in their services. The learned Regional Director has
stated that despite notice, no objection has been
received from the Income Tax Department.
11. The Learned Regional Director in its Affidavit has
raised a concern that the permission from concerned
Stock Exchange has not been taken with respect of said
Scheme. Further he states that in terms of circular of
SEBI dated 04.02.2013 read with circular dated
21.05.2013, the transferee company, which is a listed
company should have filed a scheme with the Stock
Exchange, which would in turn forward the scheme to
SEBI for its comments. It is contended that since the
draft scheme along with the required documents have
not been filed with SEBI along with the other circulars,
SEBI has no comments to offer. It is prayed that the
transferee company be directed to seek comments of
SEBI.
12. The learned Counsel for the Petitioner companies in
response to the aforesaid concern of the Regional
Director have filed the affidavit enclosing therewith a
letter dated 22 nd July 2013 filed with Delhi Stock
Exchange on 27 th August, 2014 along with the
proposed Scheme and supporting documents. He
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further submits that in case there is any breach or
violation of the provisions of law, the concerned stock
exchange can initiate and take action against the
defaulting company.
13. The learned Counsel for the Petitioner in response to
the above concern of the Regional Director has relied
on the Order of the Rajasthan High Court in In Re:
Vast Textiles Ltd. [2007]78SCL190(Raj) dated
19.12.2006, wherein it has been held as under:
"20. In Compact Power Sources (P.) Ltd., In
re/HBL Nife Power Systems Ltd., In re
[2005] 125 Comp. Cas. 2891 (AP), it was
observed as under:
...I am of the considered opinion that
the consent of the stock exchange is
not compulsorily required to be
obtained, and it would suffice if the
company files the scheme/petition
before the stock exchange a month
before it presents the scheme/petition
before the court or Tribunal for its
approval, and more so when the
company under Sub-clauses (g) and
(h) of Clause (24) of the Listing
Agreement, had agreed that the
scheme of arrangement /
amalgamation / merger /
reconstruction / reduction of capital,
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etc., to be presented to any court or
Tribunal does not violate, override or
circumscribe the provisions of
securities laws.... (p. 295)
21. It was further observed thus-
In the above view of the matter, no
serious objection can be taken to the
transferee company, in not receiving
the no objection letter from the Stock
Exchange of Mumbai, and more so
when the transferee company had filed
the letter given by the Stock Exchange
Hyderabad, which it is said is the
parent exchange for the transferee
company. (p. 295)
22. In view of ratio indicated in aforequoted
judicial pronouncement I do not find any merit in
this contention that in absence of no objection
certificate from Bombay Stock Exchange, the
scheme should not be sanctioned. The main Stock
Exchange in present case is Jaipur Stock
Exchange and even otherwise the consent of the
Stock exchange is not compulsorily required to be
obtained. The second objection of the Regional
Director that the capital of a company can be
increased only after following the procedures
prescribed under the relevant provisions of the
1956 Act and payment of requisite fees to the
Registrar of Companies and Stamp duty to the
State Government has merit. Therefore, para
19(c) of Section 4 of the Scheme providing such
increase cannot be ordered to be incorporated in
the Scheme."
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14. In view of the aforesaid clarification given by the
Petitioners, that the concerns raised by the Learned
Regional Director have been duly addressed.
15. It is directed that in case it is found that the Transferee
Company has violated any statutory provision or there
is any violation of law, then the Directors of the
Petitioner Companies shall continue to be liable
irrespective of the sanction of the Scheme.
16. No objection has been received to the Scheme from
any other party. Mr. Ashish Middha, Counsel for the
Petitioner Companies has filed an Affidavit dated 15th
July 2014 confirming that neither the Petitioner
Companies nor their Counsel has received any
objection pursuant to citations published in the
newspapers.
17. 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.
18. 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.
19. 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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19. 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.
20. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
SEPTEMBER 26, 2014
st
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