Tractebel Consulting Engineers ... vs --
2016 Latest Caselaw 1468 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                         Judgement reserved on: 22.01.2016
%                                        Judgement delivered on: 24.02.2016

+                   CO.PET. 129/2015
       IN THE MATTER OF
       TRACTEBEL CONSULTING ENGINEERS PRIVATE LIMITED
                      ....Petitioner No.1/ Transferor Company

                    WITH

       TRACTEBEL ENGINEERING PRIVATE LIMITED
                     .... Petitioner no.2/ Transferee Company

                           Through: Mr. Arun Saxena and Mr. Simran Jyot
                           Singh, Advocates for the petitioners
                           Mr. Rajiv Behl, Advocate for the OL
                           Ms. Aparna Mudiam, AR for the RD
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER


RAJIV SHAKDHER, J
1.

This is a second motion petition filed jointly by Tractebel Consulting Engineers Private Limited (i.e. petitioner no.1 / Transferor Company) with Tractebel Engineering Private Limited (i.e petitioner no.2 / Transferee Company) under Section 391 and 394 of the Companies Act, 1956 (hereafter referred to as the Act) for approval of the scheme of amalgamation (hereafter referred to as the scheme).

2. The transferor and transferee companies, will, hereafter, be collectively referred to as the petitioners.

3. The registered office of the petitioners are located within the

territorial jurisdiction of this court.

4. The details with respect to the petitioners' authorised, issued, subscribed and paid up capital have been set out in paragraph nos. 6 and 11 respectively in the petition.

5. The copies of Memorandum and Articles of Association as well as the profit and loss account and the balance sheet as on 31.03.2014, have been filed by the petitioners.

6. Copy of Board of Directors' (in short the BOD) resolution dated 31.10.2014, concerning the transferor company, whereby, the scheme has been approved, is filed with the petition.

6.1 Similarly, copy of BOD resolution dated 05.02.2015 of the transferee company, whereby, the scheme has been approved, is also on record.

7. The petitioners have averred that there are no proceedings pending against them, under Sections 235 to 251 of the Act.

8. To recapitulate, the petitioners had in the earlier round filed a petition (i.e. the first motion), being: CA(M) No.19/2015, whereby, a prayer had been made for dispensing with, the requirement of convening meetings of shareholders and creditors.

8.1 This court vide order dated 13.02.2015, having regard to the fact, that all shareholders of the petitioners had given their consent to the scheme, dispensed with the requirement of convening meetings, as prayed. 8.2 Furthermore, the court having regard to the fact that, as regards, unsecured creditors, eighteen (18) out of twenty three (23), being: 78% in number and 90% in value, of the transferor company and twenty five (25) out of thirty three (33), being 76% in number and 90% in value, belonging to the transferee company had given their consent to the scheme, dispensed

with the requirement of convening meetings of the said class of persons/ entities, as prayed.

8.3 The court, also noted, that since, both the petitioners did not have any secured creditors; therefore, there could obviously be no requirement of convening a meeting with respect to that class of persons/ entities.

9. The petitioners, thereafter, filed the instant petition (i.e. second motion). Notice in this petition was issued on 16.03.2015. Notice was accepted on behalf of the Official Liquidator (OL) and the Regional Director (RD).

9.1 Furthermore, citations were ordered to be published. 9.2 Citations were published in Delhi edition of newspapers: Business Standard (English) and Jansatta (Hindi) on 20.04.2015. An affidavit dated 10.09.2015, demonstrating service of the petition on the RD and establishing publication of citation along with the newspaper extracts, was filed by the petitioners.

9.3 Further, in the aforementioned affidavit, it was stated that subsequent to the publication of notice in the petition, petitioners have not received any objection or complaint qua the scheme.

10. Pursuant thereto, the RD filed its affidavit under Section 394 A of the Act. In the affidavit, the RD relied upon the general circular bearing no. 53/2011, dated 26.07.2011 and, circular bearing no. 1/2014, dated 15.01.2014.

10.1 Based on the aforementioned circulars, as per the affidavit of the RD, communication was sent to the Registrar of Companies, Delhi and Haryana (in short the ROC), and the Income Tax Department (I.T. Department), seeking their response to the scheme.

10.2 However, no comment/response of the I.T. Department has, apparently, been received in the matter.

10.3 The RD, though, received information from the ROC vide communication dated 05.08.2015 which, inter alia, is indicative of the fact that the said authority has not received any complaint or objection from the shareholders, creditors, or any of the stakeholders of the petitioners.

11. Therefore, in so far as the RD is concerned, there are no objections taken by it.

12. The OL, in his report, inter alia, stated that he has not received any complaint qua the scheme from any interested person or party. The O.L. has also averred that on the basis of information supplied by the petitioners, it appears, that the affairs of the transferor company have been conducted in a manner which could not be construed as being prejudicial to either the interest of its members or, the public at large. In other words, affairs of the transferor company, according to the OL, do not fall foul of the provisions of the second proviso to Section 394(1) of the Act.

13. To be noted, the scheme in clause 7 provides that all the employees of the transferor company in service on the effective date shall become the employees of the transferee company on such date without any break and interruption in service and on the terms and conditions not in any way less favourable to them than those subsisting with reference to the transferor company as the case may be on the said date.

13.1 Furthermore, as per clause 6 of the scheme, the transferor company shall stand dissolved without being wound up.

14. Accordingly, in view of the approval accorded to the scheme by the shareholders and creditors of the petitioners and, given the fact, that the RD

and the OL have not articulated any objections, to the scheme, in my opinion, there appears to be no impediment to the grant of sanction to the scheme. Consequently, sanction is granted to the scheme in terms of Section 391 and 394 of the Act. The petitioners will, however, comply with all statutory requirements, as mandated in law.

14.1 A certified copy of the order, sanctioning the scheme, will be filed with the ROC, within thirty (30) days of its receipt.

15. It is further directed that the petitioners will comply with all provisions of the scheme and, in particular, those which are referred to hereinabove.

16. In any event, notwithstanding what is stated by the petitioners, the transferee company will file an undertaking with this court, within two weeks from today, stating therein, that it will take over and defray all liabilities of the transferor company. It is also made clear, that the concerned statutory authority will be entitled to proceed against the transferee company qua any liability which it would have fastened on to the transferor company for the relevant period, and that, which may arise on account of the scheme being sanctioned.

17. Notwithstanding the above, if there is any deficiency found or, violation committed qua any enactment, statutory rule or regulation, the sanction granted by this court to the scheme will not come in the way of any action being taken albeit, in accordance with law, against the concerned persons, directors and officials of the petitioners.

18. In terms of the provisions of Section 391 and 394 of the Act, and in terms of clause 2 of the scheme the entire undertaking, properties, rights and powers of the transferor company will stand transferred to and / or vest in

the transferee company without any further act or deed. Similarly, in terms of the scheme, all liabilities and duties of the transferor company shall stand transferred to the transferee company without any further act or deed.

19. It is made clear, that this order will not be construed as an order granting exemption, inter alia, from: payment of stamp duty or, taxes or, any other charges, if payable, as per the relevant provisions of law or, from any applicable permissions that may have to be obtained or, even compliances that may have to be made, as per the mandate of law.

20. Consequently, the petition is allowed and disposed of in the aforesaid terms.

RAJIV SHAKDHER, J FEBRUARY 24, 2016