Delhi High Court
Anusha Engineering Consultants & ... vs Rahini Constructions Private ... on 30 March, 2016
Author: Rajiv Shakdher
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgement reserved on : 21.03.2016
% Judgement delivered on: 30.03.2016
+ CO.PET. 420/2015
IN THE MATTER OF
ANUSHA ENGINEERING CONSULTANTS & CONSTRUCTION
PRIVATE LIMITED
...... Petitioner Company 1/Demerged Company
AND
RAHINI CONSTRUCTIONS PRIVATE LIMITED
... Petitioner Company 2/ Resulting Company
Through: Mr. Chander Shekhar and
Mr. M.D.Sharma, Advocates.
Ms. Aparna Mudiam, Asstt.
ROC for the RD.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J
1.
This is a second motion petition filed jointly by Anusha Engineering
Consultants & Construction Private Limited (i.e. petitioner no.1/demerged
company) with Rahini Constructions Private Limited (i.e. petitioner
no.2/resulting company) under Section 391 and 394 of the Companies Act,
1956 (hereafter referred to as the Act) for approval of the Scheme of
arrangement/demerger (hereafter referred to as the scheme).
2. The petitioner no.1/demerged company and petitioner no.2/resulting
company, as referred to above, will hereafter be collectively referred to as
the petitioners.
3. The registered office of the petitioners is located within the territorial
jurisdiction of this court.
4. The details with respect to the petitioners' authorised, issued,
subscribed and paid up capital are set out in paragraph 6 and 18 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. Copies of Board of Directors' resolution of even date i.e. 18.03.2015,
concerning the petitioners, whereby, the scheme has been approved, are filed
with the petition.
7. The petitioners have averred that the demerger will result in better,
efficient and economical : management, control and running of the
businesses and, further development as also growth of the businesses of the
companies concerned.
8. In terms of clause 2.2 of the scheme, the share exchange ratio as
provided therein is as follows:
"37 equity shares of Rs.1 0/- each fully paid up of the
resulting company for every 01 equity share of Rs.1 0/- each
fully paid up held in the demerged company".
9. The petitioners have averred that there are no proceedings pending
against them, under Sections 235 to 251 of the Act.
10. To recapitulate, the petitioners had in the earlier round filed an
application (i.e. the first motion), being: CA (M) No.77/2015, whereby, a
prayer had been made for dispensing with, the requirement of convening
meeting of shareholders and unsecured creditors. This court vide order dated
25.05.2015, having regard to the fact, that all shareholders of the petitioners
and unsecured creditors of petitioner no.1/demerged company had given
their consent to the scheme, dispensed with the requirement of convening
meetings as prayed.
10.1 The court, also noted, that since, petitioner no.2/ resulting company
did not have any secured or unsecured creditors, therefore, there was no
requirement to convene a meeting with respect to the said class of
persons/entities.
11. The petitioners, thereafter, filed the instant petition (i.e. the second
motion). Notice in this petition was issued on 08.07.2015. Notice was
accepted on behalf of the Regional Director (RD). Furthermore, citations
were ordered to be published.
12. Pursuant thereto, reply/ representation has been filed by the RD.
Citations were published, on 15.11.2015, in Delhi Editions of the following
newspapers: Indian Express (English) and Jansatta (Hindi).
12.1 An affidavit dated 05.12.2015 establishing publication of citation
alongwith the newspaper extracts, has been filed by the petitioners.
12.2 Further, in the aforementioned affidavit it is stated that subsequent to
the publication of the notice of the petition they had not received any
objection or complaint qua the scheme.
13. 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
15.04.2014. 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 seeking their
response to the scheme.
13.1 The RD, though, received information from I.T. Department vide
communication dated 12.10.2015 whereby it is conveyed that there is no
outstanding demand pending, as on 12.10.2015, qua the demerged company.
13.2 The affidavit of the RD adverts to the fact that it has received
information from the ROC vide report dated 30.10.2015 which, inter alia, is
indicative of the fact that the said authority had not received any complaint
or objection from the shareholders or any of the other stakeholders who
would be concerned with the petitioners.
14. Therefore, in so far as the RD is concerned, there are no objections
taken by him qua the scheme.
15. The petitioners have also taken a stand in consonance with clause 3 of
the scheme, that upon the scheme being effective, the respective book values
of the assets and liabilities of the demerged undertaking of the petitioner
no.1/demerged company shall be adjusted in its books of accounts in
accordance with the applicable accounting standard.
16. Since, this is a case of demerger, as far as the Official Liquidator (in
short the OL) is concerned, it would have no role to play in this case.
Mr.Behl, the learned counsel for the OL affirms this position.
17. To be noted, the scheme in clause 4.2 provides that all employees of
the demerged business of the petitioner no.1/demerged company in service
on the effective date shall become the employees of resulting company on
such date without any break and interruption in service and on the terms and
conditions not in any way less favorable to them than those subsisting in
petitioner no.1/demerged company as on the effective date.
18. Accordingly, in view of the approval accorded to the scheme by the
shareholders and creditors of the petitioners and, given the fact, that
Ms.Aparna Mudiam, who appears for the RD confirmed that the RD has no
objection to the scheme being sanctioned, in my opinion, there appears to be
no impediment in 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. A certified copy of the order, sanctioning the scheme, will
be filed with the ROC, within thirty (30) days of its receipt.
18.1 In terms of the provisions of Section 391 and 394 of the Act, and in
terms of clause 2.1.1 of the scheme the entire undertaking including assets,
investments, properties, rights, privileges, benefits and interests of the
demerged undertaking of the petitioner no.1/ demerged company will stand
transferred to and vest in petitioner no.2/resulting company without any
further act or deed. Similarly, in terms of the scheme, all liabilities, duties
and obligations of the demerged undertaking of the demerged company shall
stand transferred to petitioner no.2/resulting company without any further act
or deed.
19. It is made clear, that this order will not be construed as an order
granting exemption from: payment of stamp duty or, taxes or, other
penalties/ charges, if any, 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. Resultantly, the petition is allowed and disposed of in the aforesaid
terms.
RAJIV SHAKDHER, J
MARCH 30, 2016
