Mc Consulting Engineers Private ... vs ...
2016 Latest Caselaw 4113 Del

                     IN THE HIGH COURT OF DELHI
                    COMPANY PETITION NO. 753/2015

                                             Reserved on 26th April, 2016
                                  Date of pronouncement: 30th May, 2016
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):

And

Petition under Section 394 of the Companies
Act, 1956

Scheme of Arrangement and Demerger between:

MC Consulting Engineers Private Limited
                                   Non-Petitioner/Demerged Company
    AND

Technocrats Advisory Services Private Limited
                                          Petitioner/Resulting Company

                                Through Mr. Rohit Mehra with Ms.Mani
                                Gupta and Mr. Abhishek Gupta,
                                Advocates for the petitioners
                                Ms.     Aparna     Mudiam,    Assistant
                                Registrar of Companies for the
                                Regional Director
                                Mr. Ashish Makhija, Advocate for the
                                Official Liquidator

SUDERSHAN KUMAR MISRA, J.

1. This petition has been filed under Section 394 of the Companies

Act, 1956 by the petitioner/resulting company seeking sanction of the

Scheme of Arrangement and Demerger between MC Consulting

Engineers Private Limited (hereinafter referred to as the demerged

company) and Technocrats Advisory Services Private Limited

(hereinafter referred to as the petitioner/resulting company).

2. The registered office of the petitioner/resulting company is situated

at New Delhi, within the jurisdiction of this Court. However, the registered

office of the Demerged Company is situated at Hyderabad, outside the

jurisdiction of this Court. Learned counsel for the petitioner submits that

the High Court of Judicature at Hyderabad has approved the Scheme in

respect of the demerged company vide order dated 17.08.2015.

However, a copy of the said order is not placed on record.

3. The petitioner/resulting company was incorporated under the

Companies Act, 2013 on 12th December, 2014 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

4. The present authorized share capital of the petitioner/resulting

company is Rs.2,00,00,000/- divided into 20,00,000 equity shares of

Rs.10/- each. The issued, subscribed and paid-up share capital of the

company is Rs.50,00,000/- divided into 5,00,000 equity shares of Rs.10/-

each.

5. Copies of the Memorandum and Articles of Association of the

petitioner/resulting company and the demerged company have been filed

on record with the application being CA(M) 108/2015 earlier filed by the

petitioner company. The audited balance sheets, as on 31st December,

2014, of the petitioner/resulting company and the demerged company,

along with the report of the auditors, had also been filed.

6. A copy of the Scheme of Arrangement and Demerger has been

placed on record and the salient features of the Scheme have been

incorporated and detailed in the petition and the accompanying affidavit.

It has been submitted by the petitioner that the Scheme, inter alia,

provides for merger of a part of the demerged company i.e. the

Demerged Business into the resulting company. It is claimed by the

petitioner that the proposed demerger will enable the demerged company

to focus on the operations of its consultancy business in sectors other

than roads, highways bridges and the resulting company to focus on and

build its competencies in the demerged business. It is further claimed

that the proposed demerger will bring about effective utilization of

resources and flexibility for the demerged company and will enable the

resulting company to capitalize on the growth opportunities in the field of

consultancy services in roads, highways and bridges and attract relevant

stakeholders.

7. So far as the share exchange ratio is concerned, the Scheme

provides that, upon coming into effect of this Scheme, the

petitioner/resulting company shall issue and allot equity shares to the

shareholders of the demerged company in the following ratio:-

"02 equity shares of Rs.10/- each of the resulting company for every 01 equity share of Rs.10/- each held in the demerged company."

8. It has been submitted by the petitioner that no proceedings under

Sections 235 to 251 of the Companies Act, 1956 are pending against the

petitioner/resulting company.

9. The Board of Directors of the petitioner/resulting company and the

demerged company in their separate meetings held on 23rd February,

2015 has unanimously approved the proposed Scheme of Arrangement

and Demerger. Copies of the resolutions passed at the meetings of the

Board of Directors of the petitioner/resulting company and the demerged

company had been placed on record.

10. The petitioner/resulting company had earlier filed CA (M) No.

108/2015 seeking directions of this court to dispense with the

requirement of convening the meetings of their equity shareholders,

secured and unsecured creditors, which are statutorily required for

sanction of the Scheme of Arrangement and Demerger. Vide order dated

3rd August, 2015, this court allowed the application and dispensed with

the requirement of convening and holding the meeting of the equity

shareholders of the petitioner/resulting company, there being no secured

or unsecured creditor of the resulting company, to consider and, if

thought fit, approve, with or without modification, the proposed Scheme

of Arrangement and Demerger.

11. The petitioner companies have thereafter filed the present petition

seeking sanction of the Scheme of Arrangement and Demerger. Vide

order dated 5th October, 2015, notice in the petition was directed to be

issued to the Official Liquidator and the Regional Director, Northern

Region. Citations were also directed to be published in 'Indian Express'

(English) and 'Jansatta' (Hindi) editions. Affidavit of services has been

filed by the petitioner showing compliance regarding service on the

Official Liquidator and the Regional Director, Northern Region, and also

regarding publication of citations in the aforesaid newspapers on 19th

November, 2015. Copies of the newspaper clippings containing the

publications have been filed along with the said affidavit.

12. Pursuant to the notices issued, the Official Liquidator sought

information from the petitioner companies. Based on the information

received, the Official Liquidator has filed a report dated 27th January,

2016 wherein he has stated that the present Scheme involves demerger

only whereby no company gets dissolved.

13. In response to the notices issued in the petition, Mr. A. K.

Chaturvedi, Regional Director, Northern Region, Ministry of Corporate

Affairs has filed his report dated 16th February, 2016. Although the

Regional Director has not raised any objection to the proposed Scheme,

but in para 7 of his report he has stated that the Board of Directors of the

petitioner/resulting company have approved the proposed Scheme in

their meeting held on 23.02.2015. Accordingly, in terms of provisions of

Section 117(3) read with 179(3) of the Companies Act, 2013, the

company is required to file such resolution (e-form MGT-14) with the

ROC within 30 days of passing the resolution whereas the company has

not filed the said resolution so far thereby prima facie violated the

provisions of Section 117(3) of the Companies Act, 2013.

14. In response to the aforesaid observation of the Regional Director,

the petitioner/resulting company in the affidavit dated 1st April, 2016 of

Sh. Kamlesh Kumar Gupta, authorized signatory of the

petitioner/resulting company, has submitted that the petitioner company

has taken steps to file the e-form MGT-14 and has applied for

condonation of delay beyond 300 days in filing the said e-form to the

Central Government on 18.02.2016, and the said delay was condoned by

the government vide order dated 31.03.2016. Accordingly, the petitioner

company has filed the e-form MGT-14 with the ROC on 01.04.2016. A

copy of the said form has also been placed on record. In view of the

above, the observation made by the Regional Director stands satisfied.

15. No objection has been received to the Scheme of Arrangement

and Demerger from any other party. Learned counsel for the

petitioner/resulting company has submitted that neither the petitioner

companies nor their advocates have been received pursuant to the

citations published in the newspapers on 19th November, 2015.

16. Considering the approval accorded by the shareholders of the

petitioner/resulting company to the proposed Scheme of Arrangement,

there being no secured and unsecured creditor of the petitioner company,

and the affidavits filed by the Official Liquidator and the Regional

Director, Northern Region, not raising any objection to the proposed

Scheme of Arrangement and Demerger, and in view of the order dated

17.08.2015 of the High Court of Judicature at Hyderabad approving the

Scheme in respect of the demerged company, there appears to be no

impediment to the grant of sanction to the Scheme of Arrangement and

demerger. Consequently, sanction is hereby granted to the Scheme of

Arrangement and demerger under Sections 391 and 394 of the

Companies Act, 1956. The petitioner company will comply with the

statutory requirements in accordance with law. Certified copy of this order

be filed with the Registrar of Companies within 30 days. It is also clarified

that this order will not be construed as an order granting exemption from

payment of stamp duty as payable in accordance with law. Upon the

sanction becoming effective from the appointed date of Arrangement, i.e.

1st January, 2015, the Demerged Business of the demerged company

shall stand merged in the resulting company.

17. Learned counsel for the Official Liquidator prays that costs of at

least Rs.50,000/- should be paid by the petitioner keeping in view the fact

that the matter has involved examination of extensive records and also

prioritized hearings. Learned counsel for the petitioner company states

that the same is acceptable to him. As already directed vide order dated

26.04.2016, the petitioner shall deposit a sum of Rs.50,000/- by way of

costs with the Common Pool Fund of the Official Liquidator.

18. The petition is allowed in the above terms.

Dasti.

SUDERSHAN KUMAR MISRA, J.

May 30, 2016