Delhi High Court
Times Business Solutions Limited vs ............. on 26 September, 2014
$~36
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 289/2014
IN THE MATTER OF
TIMES BUSINESS SOLUTIONS LIMITED ....Petitioners
Through: Mr. Abhishek Seth, Mr. Abhixit
Singh, Mr. Rakesh Kumar Singh
and Mr. Rajeev Kumar
Advocates for the Petitioners.
Mr. Atma Sah Assistant
Registrar of Companies for the
Regional Director.
Mr. S.B Gautam, the Official
Liquidator.
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 26.09.2014
SANJEEV SACHDEVA, J (ORAL)
CA No. 2133/2014
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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CO.PET. 289/2014
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 Times Business
Solutions Limited (hereinafter referred to as
Transferor Company) with Times Internet 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 offices of the Petitioner Companies are
situated at New Delhi, within the jurisdiction of this
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 for the year ended 31 st March
2013 have also been enclosed with the Petition.
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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
Companies Act, 1956 is pending against the Petitioner
Companies.
7. The Petitioner Companies had earlier filed C.A. (M) 67
of 2014 seeking directions of this Court for
dispensation/convening of meetings. Vide Order dated
22nd April 2014, this Court allowed the Application and
requirement of convening all the meetings of
Shareholders, Secured and Un-secured Creditors of the
Transferor Company and the Transferee Company were
dispensed with. There are Secured Creditors in the
Applicant Companies.
8. The Petitioner Companies had thereafter filed the
present Petition seeking sanction to the Scheme of
Amalgamation. Vide Order dated 5th May 2014, notice
of the Petition was directed to be issued to the Registrar
of Companies, Regional Director, Northern Region,
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Ministry of Corporate Affairs and the Official
Liquidator attached with this Court. Citations were also
directed to be published in "Business Standard"
(English) and "Dainik Bhaskar" (Hindi). 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, the Official
Liquidator has filed his Report dated 12th 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 do not
appear to have been conducted in a manner prejudicial
to the interest of its members, creditors or to public
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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
17th September, 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
in their services. Further, the learned 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 his Affidavit has
observed that in Para 14 of part II of the Scheme it is
provided that upon coming into the effect of the
scheme, clause 4, 5, 6, 7 and 8 of the Memorandum of
Association of the Transferor Company as mentioned
in the scheme shall be inserted into the main clause III
(A) of the Memorandum of Association of the
Transferee Company. In this regard that the Transferee
Company be asked to comply with the provisions of
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section 17 of the Companies Act, 1956 or the
corresponding provisions of the Companies Act 2013
in respect to the proposed alteration of the
Memorandum & Articles of Association of the
Petitioner Transferee Company.
12. Learned counsel for the petitioner relies on the
judgment of this Court in CO.PET. 379/2014 in the
case of C&S Electric MV Pvt. Limited dated
10.09.2014 wherein it was held as under:-
"16. In response to the aforesaid observation, the
learned counsel for Petitioner Companies
submits that amendment in the Memorandum
& Articles of Association of the Transferee
Company is part of the Scheme of
Amalgamation. Further, as also stated in para
No. 15.3 of the Scheme of Amalgamation, the
Transferee Company shall file with the
Registrar of Companies, Delhi & Haryana at
New Delhi all requisite forms and complete
the compliance and procedural requirements
under the Companies Act, if any.
17. This Court by order dated 23.05.2014 in
CO.PET 134/2014 titled M/s Capital 18
Fincap Pvt. Ltd and order dated 07.08.23014
in CO.PET 246/2014 titled Kalyani Alstom
Power Limited & Ors held that a scheme of
arrangement in terms of section 391-394 of
the Companies Act, 1956 is a complete code
in itself, requiring sanction by the
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jurisdictional High Court, which is a single
window clearance and as such, does not
require any other procedure to be followed
separately. Upon sanction of the scheme, the
order of the court shall be filed with the
Registrar of Companies and the same shall
constitute compliance of the provisions of the
Act for change of the Memorandum of
Association."
13. The learned Counsel for the Petitioner Companies has
also undertaken by way of an Affidavit that the
Petitioner Companies shall comply with and follow the
provisions of Section 13 of the Companies Act, 2013
which is corresponding to Section 17 of the Companies
Act 1956 and all the applicable procedure as prescribed
in the Companies Act, 2013 so as to effectuate the
change in the main objects and alteration in the
memorandum and Articles of Association immediately
upon the Scheme becoming effective.
14. In view of the aforesaid clarifications and undertaking
given by the Petitioners, the concerns of the Regional
Director have been duly addressed.
15. No objection has been received to the Scheme from any
other party. Mr. Sidhant Khosala, Authorized Signatory
of the Petitioner Transferor Company and Mr, Joy
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Basu, Authorized Signatory of the Petitioner Transferee
Company have filed Affidavits confirming that neither
the Petitioner Companies nor their Counsel has
received any objection pursuant to citations published
in the newspapers.
16. In view of the approval accorded by the Shareholders
and Creditors of the Petitioner Companies,
representation/report filed by the Regional Director,
Northern Region and Official Liquidator attached with
this Court to the proposed scheme, there appears to be
no impediment to the grant of sanction to the Scheme.
Consequently, sanction is hereby granted to the Scheme
under sections 391 and 394 of the Companies Act,
1956. The Petitioner Companies will comply with the
statutory requirements in accordance with law.
17. Certified copy of the order will 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 Act, and in terms of the
Scheme the whole of the undertaking, the properties,
rights and powers of the Transferor Company be
transferred to and vest in the Transferee Company
without any further act or deed. Similarly, in terms of
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the Scheme, all the liabilities and duties of the
Transferor Companies 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 following the process of
winding up.
18. 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.
19. 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.
20. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
SEPTEMBER 26, 2014/st
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