Delhi High Court
Capital 18 Fincap Pvt. Ltd. vs ... on 17 July, 2015
$~34
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 134/2014
CAPITAL 18 FINCAP PVT. LTD. ..... Petitioner
Through Mr. Ravi Sikri, Sr. Advocate with Mr. Tarun
Dua and Mr. A. Garg, Advocates.
Mr. Ashish Makhija, Advocate for O. L.
Ms. Aparna Mudiam, Asstt. ROC.
CORAM:
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
SUDERSHAN KUMAR MISRA, J.(ORAL)
Co.Appln. No.1883/2015
Exemption, as prayed, is allowed, subject to all just exceptions.
This application is disposed off.
Co.Appln. No.1884/2015
This application has been moved by the petitioners for placing on
record the order passed by the Bombay High Court on 03.07.2015 in
Co.Appln. (L) No.443/2015 with regard to Company Scheme Petition
No.668/2014 allowing the applicant therein; who is transferor company
No.1/non applicant herein; to withdraw the scheme. It is stated that a
similar application has been moved by the applicants herein also seeking
recall of the order passed by this Court on 23.05.2014, whereby the
Second Motion Petition in connection with the scheme of
amalgamation, being Co.Pet. No.134/2014, came to be allowed.
These orders were passed pursuant to earlier orders passed by this
Court in the First Motion Petition, being Co.Appln. (M) No.28/2014. It
CO.PET. 134/2014 Page 1 of 5
is stated that since a similar application has been moved by applicants
herein for the same reason, therefore, the order passed by the Bombay
High Court is also relevant to the matter.
Issue notice.
Mr. Ashish Makhija, Advocate, enters appearance and accepts
notice on behalf of the Official Liquidator. Ms. Aparna Mudiam,
Assistant Registrar of Companies, enters appearance and accepts notice
on behalf of the Regional Director. They state that looking to the nature
of the prayer sought, and the circumstances, under which this application
has come to be filed; they have no objection to the same.
Consequently, and as prayed, Co.Appln. No.1884/2015 is allowed
and the order dated 03.07.2015 passed by the Bombay High Court in
Co.Appln. (L) No.443/2015 in Co. Pet. Scheme No.668/2014; which is
annexed to this application; is taken on record.
The application is disposed off.
Co.Appln. No.1882/2015
This application has been moved by the applicants before this
Court seeking recall of the order passed on 23.05.2014 whereby Co.Pet.
No.134/2014, that was being a Second Motion Petition, was allowed by
this Court. It is stated that the aforesaid orders allowing the Second
Motion Petition in connection with the scheme under Sections 391 to
394 of the Companies Act, 1956 came to be passed by this Court on
23.05.2014
pursuant to earlier orders passed on the First Motion
Petition, Co.Appln. (M) No.28/2014, that was disposed off on
14.02.2014. It is stated that the substantive petition before this Court
had been moved by the transferee company as well as transferor
company Nos.2, 3, 4 and 5 whereas the transferor company No.1, Reed
Infomedia India Pvt. Ltd., was not before this Court since the same is
situated in the jurisdiction of the Bombay High Court and had moved
similar petition before the Bombay High Court.
It appears that the scheme as propounded came to be passed both
by the Bombay High Court on 30.01.2015 and by this Court on
23.05.2014.
It is the case of the applicants that notwithstanding the fact the
aforesaid orders were passed by this Court sanctioning the scheme, no
further steps were taken by the petitioner towards implementation of the
scheme as were required under Sections 391 (3) which, inter alia, oblige
the applicants to file Form-INC-28 with the Registrar of Companies
within 30 days of the passing of the aforesaid orders by this Court;
whereafter the scheme would have come into effect. He submits that
under the circumstances, the scheme itself has not come into effect,
however, with a view to obviating any future complications in the
matter, the applicants are advised to also seek recall of the orders of this
Court on 23.05.2014.
Issue notice.
Mr. Ashish Makhija, Advocate for the Official Liquidator, and
Ms. Aparna Mudiam, Assistant Registrar of Companies, enter
appearance and accept notice. They state that looking to the overall
circumstances, and specially in view of the order of the Bombay High
Court dated 03.07.2015; relied upon by counsel for the applicants; they
do not wish to file any reply to this application.
Perusal of the aforesaid order passed by the Bombay High Court
on 03.07.2015 shows that it has examined identical reasons put forward
by the applicant for withdrawal of similar sanctioning orders passed by
the Bombay High Court on an identical application moved by the
transferor company No.1 Reed Infotech India Pvt. Ltd.; and that the case
of the applicant to the effect, inter alia, that the applicant finds its
scheme inefficient, has been considered sufficient to grant the relief
sought; while also keeping in mind that the necessary Resolution seeking
the recall and non-implementation of the Scheme sanctioned, had been
duly passed by the shareholders and the Board of Directors.
While passing the aforesaid order dated 03.07.2015 on the
application moved by the transferor company No.1, Reed Infortech India
Pvt. Ltd., the High Court of Bombay relied upon an earlier decision of
that Court in the matter of Topworth Steels and Power Pvt. Ltd.;
decided on 13.12.2011 in Co.Appln. No.339/2011 in Co. Scheme Pet.
No.44/2011. This is also relied upon by counsel for the applicants before
this Court; and in particular, paragraph 7 thereof, which, in substance,
posits the proposition that if there is nothing in the scheme; or in the
statute empowering court to approve the said scheme; prohibiting recall
of any orders sanctioning such a scheme that are once passed by the
court, then recall may be permitted in the exercise of inherent power of
the court, which may be exercised keeping in mind the peculiar facts and
circumstances of an individual case.
In the instant case, counsel for the applicants has also drawn the
attention of this Court to paragraphs 17.1 and 17.2 of the scheme, which,
inter alia, contemplate withdrawal of the said scheme in case the same is
found unviable.
In addition, counsel for the applicants has also placed reliance on
another decision of the Bombay High Court in Co.Appln. No.92/2015 in
Co. Scheme Pet. No.574/2014 on 10.04.2015 in Samarth Life Sciences
Pvt. Ltd. v. The Regional Director and Ors., where also, the company
concerned was allowed to withdraw the scheme after the same had been
sanctioned by the court.
Under the circumstances, and in view of the aforesaid decisions, I
am satisfied that recall, as prayed for, should be granted. Consequently,
the orders passed by this Court on 05.02.2014 in Co.Appln. (M)
No.28/2014 and Co.Pet. No.134/2014 dated 23.05.2014 stand recalled.
The applicants shall also file a copy of the relevant Resolutions
passed by the shareholders as well as the Board of Directors before the
Registrar of Companies in terms of the Companies Act and Rules.
The application is disposed off.
SUDERSHAN KUMAR MISRA
Judge
JULY 17, 2015
dr
