Delhi High Court
Metro Institutes Of Medical ... vs ............ on 30 September, 2014
$~ 15
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 370/2013
IN THE MATTER OF
METRO INSTITUTES OF MEDICAL SCIENCES
PRIVATE LIMITED ..... Petitioners
Through: Mr. Rajeev K Goel, 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
% 30.09.2014
SANJEEV SACHDEVA, J (ORAL)
1. This second motion joint Petition has been filed under
sections 391 to 394 read with section 100 to 104 of the
Companies Act, 1956 seeking sanction of the Scheme
of Arrangement ("Scheme") (De-merger) of (a) Metro
Hospital & Research Centre at Vadodara and (b)
Nursing College cum Hospital at Greater Noida of
Metro Institutes of Medical Sciences Pvt Ltd
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(hereinafter referred as Demerged Company) into
Metsun Healthcare Pvt Ltd (hereinafter referred to as
Resultant Company No. 1) and Hilsun Medical
Services Pvt Ltd (hereinafter referred as Resultant
Company No. 2) (collectively hereinafter referred to as
the 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. 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. Copies of the Memorandum and Articles of
Association as well as the latest audited Annual
Accounts for the year ended 31 st 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
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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 C.A (M) 55
of 2013 seeking directions of this Court for
dispensation/convening of meetings. By Order dated 7 th
May, 2013, this Court allowed the Application and
requirement of convening meetings of Shareholders of
the Demerged Company and the Resultant Companies
No. 1 & 2 were dispensed with. None of the Resultant
Companies No. 1 & 2 had any Secured and Un-secured
Creditors. This Court further directed convening of
separate meetings of Secured Creditors and Un-secured
Creditors of the Demerged Company under its
supervision. The Chairman‟s have filed their respective
reports stating that the Scheme was unanimously
approved by the Secured Creditors and Un-secured
Creditors.
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8. The Petitioner Companies had thereafter filed the
present Petition seeking sanction to the Scheme of
Arrangement. Vide Order dated 26 th July 2013, notice
of the Petition was directed to be issued to the Regional
Director, Northern Region. 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 also regarding
publication of citations in the aforesaid newspapers.
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 in the Petition, Learned
Regional Director, Northern Region, Ministry of
Corporate Affairs has filed his Affidavit/Report dated
20th March, 2014. Relying on the Scheme of
Arrangement, he has stated that, upon sanction of the
Scheme, all the employees of the Demerged Business
of the Demerged Company shall become the employees
of the Resultant Companies without any break or
interruption in their services.
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10. The Learned Regional Director in its Affidavit has
raised observation that certain charges are proposed to
be transferred from the Demerged Company to the
Resulting Companies. Since name of the Company can
not be substituted in the Charge Documents filed with
the Registrar of Companies, the Petitioner Demerged
Company and Resultant Companies may be asked to
file requisite forms for satisfaction and creation of
charge.
11. In response to above said observation, the Petitioner
Demerged Company in their Reply Affidavit dated 13 th
May, 2014, has submitted that the charges have been
created on some assets of the Demerged Company
which are proposed to be demerged pursuant to the
Scheme of Arrangement subject such charges. The
Resultant Company will have to create charge in favour
of the concerned lenders and file necessary form(s)
with the ROC. Para 2.1.5 of the Scheme of
Arrangement provides that the Demerged Company
and Resultant Company will file requisite form(s) with
the Registrar of Companies for creation, modification
and/or satisfaction of charge(s), to the extent required,
to give effect to the provisions of the Scheme.
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12. Further, the learned Regional Director in its Affidavit
has raised observation that Share Valuation Report
prepared by M/s Lopa Verma & Associates, Chartered
Accountants is based on the financial figures as at
31.12.2012, whereas the Appointed Date has been fixed
as 1.4.2013.
13. In response to above said observation, learned Counsel
for the Petitioner Companies submits that the valuation
exercise was undertaken during the month of February,
2013 and the latest audited accounts available at that
time were for the year ended 31.3.2012. The Petitioner
Demerged and Resultant Companies prepared un-
audited provisional accounts for the latest period ended
31.12.2012. Accordingly, the Fair value of the
Demerged Business was determined on the basis of the
Net Assets Value of these divisions as per such
financial statements as on 31st December, 2012. Hence,
the Appointed Date was fixed as 1 st April, 2013.
However, the Petitioners submit that the date may be
fixed by the Court and is agreeable to shifting of the
st st
date from 1 April 2013 to 31 December 2012 .
14. Further, the Regional Director in its Affidavit has
raised another concern that Petitioner Companies
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should be asked to provide the details of assets and
liabilities as at 1.4.2013 proposed to be transferred
under the Scheme of Arrangement.
15. In response to above said observation, the Petitioner
Demerged Company submits that the details of assets
and liabilities as at 1.4.2013, the Performa Balance
Sheet as on 31.03.2013 has been annexed with the
Revised Scheme of Arrangement which has been filed
along with the C.A No. 1236 of 2014.
16. Further, the Regional Director has raised an
observation that as per the Audited Balance Sheet as at
31.3.2012, the Petitioner Demerged Company was
having a large „cash in hand‟ position and the Company
may be asked to deposit the same in its Bank Account.
17. In response to above said observation, the Petitioner
Demerged Company submits that the Demerged
Company owns and runs several hospitals and most of
the sale in the Hospital Industry is cash sale. Cash is
deposited in the Bank account regularly. Cash in hand,
as pointed out by the learned Regional Director is
commensurate to the size of the Company‟s operations.
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The Company has also taken insurance coverage for
such cash amount.
18. Further the Regional Director has raised an observation
that the Petitioners may be asked to submit a copy of
the latest Balance Sheet as on 31.3.2013 and Audit
Report before the Hon‟ble Court.
19. In response to above said observation, the Petitioner
Demerged Company submits that latest Balance Sheet
and latest audited Annual Accounts for the year ended
31.03.2013 of all the Petitioner Companies, have been
submitted in the Court along with reply affidavit.
20. In view of the aforesaid clarifications, the concerns of
the Regional Director have been duly addressed.
21. Mr. Atma Sah, Assistant Registrar of Companies
Submits that no further Affidavit is required to be filed
and the Affidavit dated 20 th March 2014 be treated as
an Affidavit in response to modified/revised Scheme.
22. It is directed that the Income Tax Authorities shall be
permitted to proceed against the Petitioner Companies
in respect of any liability that may arise irrespective of
the sanction of the Scheme.
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23. No objection has been received to the Scheme of
Arrangement from any other party. Ms. Punam Lal,
Director of the Demerged 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.
24. In view of the approval accorded by the Shareholders
and Creditors of the Petitioner Companies;
representation/report filed by the Regional Director,
Northern Region to the proposed Scheme of
Arrangement, there appears to be no impediment to the
grant of sanction to the Scheme of Arrangement.
Consequently, sanction is hereby granted to the revised
Scheme of Arrangement under sections 391 and 394;
100 to 104 of the Companies Act, 1956. The Petitioner
Companies will comply with the statutory requirements
in accordance with law.
25. 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; 100 to 104 of the Companies
Act, 1956, all the property, rights and powers of the
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Metro Hospital & Research Centre at Vadodara of the
Demerged Company be transferred to and vest in the
Resultant Company without any further act or deed.
Similarly, all the liabilities and duties of the Metro
Hospital & Research Centre at Vadodara of the
Demerged Company be transferred to the Resultant
Company without any further act or deed.
26. 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.
27. The Petition is allowed in above terms.
Order Dasti.
SANJEEV SACHDEVA, J
SEPTEMBER 30, 2014/st
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