Gujarat High Court
Arvind Envisol Private Limited vs Respondent(S) on 12 August, 2016
Author: R.M.Chhaya
Bench: R.M.Chhaya
O/COMP/238/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY PETITION NO. 238 of 2016
In COMPANY APPLICATION NO. 59 of 2016
With
COMPANY PETITION NO. 239 of 2016
In
COMPANY APPLICATION NO. 60 of 2016
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ARVIND ENVISOL PRIVATE LIMITED....Petitioner(s)
Versus
.....Respondent(s)
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Appearance:
MRS SWATI SOPARKAR, ADVOCATE for the Petitioner(s) No. 1
MR DEVANG VYAS, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 12/08/2016
ORAL ORDER
1. These are the petitions filed by two companies viz. Arvind Envisol Private Limited and Arvind Accel Limited, for the purpose of obtaining the sanction of this court to a Scheme of Amalgamation of Arvind Envisol Private Limited, the Transferor Company with Arvind Accel Limited, the Transferee Company; proposed under section 391 to 394 of the Companies Act, 1956.
2. It has been submitted that both these companies belong to the same group of management and are engaged in commercial activities which are similar in nature and complimentary to each other viz. providing environmental solutions to achieve Zero Liquid Discharge. The Board of Directors of these Companies thought it appropriate to Page 1 of 8 HC-NIC Page 1 of 8 Created On Sat Aug 13 04:43:47 IST 2016 O/COMP/238/2016 ORDER amalgamate them for synergic benefits. It is envisaged that consolidation of their activities shall be beneficial for rapid growth of operations of the Transferee Company. The petitions provide the details of the benefits envisaged out of the proposed Scheme.
3. It has been submitted that vide orders dated 16th February 2016 passed in Co. Applications No. 59 and 60 of 2016, the meetings of the Equity Shareholders of both the Companies were dispensed with in view of the written consent letters from all of them, approving the proposed scheme, being placed on record. There are no Secured Creditors of these companies. However, vide the aforesaid orders, the Hon'ble Court directed both the Petitioner Companies to convene the meetings of the Unsecured Creditors of the respective companies for the purpose of obtaining their approval to the proposed scheme. Pursuant to the directions, meetings of the unsecured creditors of both the Companies were duly convened and held on 26th March 2016 and the Scheme was approved unanimously by all the unsecured creditors, present and casting valid votes at the respective meetings. The reports dated 8th April 2016, alongwith the affidavit by the Chairman of the meetings of these companies have been placed on record for the result of the respective meetings.
4. The substantive petitions for the sanction of the scheme were filed by these companies which were Page 2 of 8 HC-NIC Page 2 of 8 Created On Sat Aug 13 04:43:47 IST 2016 O/COMP/238/2016 ORDER admitted on 9th June 2016. The notice for the hearing of the petitions were duly advertised in the newspapers being 'Indian Express', English daily and 'Gujarat Samachar', Gujarati daily both Ahmedabad editions of 30th June 2016 and the publication in the Government gazette was dispensed with as directed in the said orders. Affidavits dt. 5th July 2016 confirm the same. No one has come forward with any objections to the said petitions even after the publication and the same has been further confirmed by the additional affidavit dated 1st August 2016.
5. Notice of the petition has been served upon the Office of the Official Liquidator for the Transferor company. The report dated 9th August 2016 has been filed by the Official Liquidator after taking into account the report of the Chartered Accountant appointed by him out of the panel. It has been observed by the Official Liquidator that the affairs of the Transferor Company have been conducted within its object clauses and they have not been conducted in any manner prejudicial to the interest of the members or public interest, hence the petitioner transferor company may be dissolved without following the process of winding up. However, the Official Liquidator has sought directions to be issued to preserve the books of accounts, papers and records and not to dispose of the same without prior permission of the Central Govt. as per the provisions of Section 396 (A) of the Page 3 of 8 HC-NIC Page 3 of 8 Created On Sat Aug 13 04:43:47 IST 2016 O/COMP/238/2016 ORDER Companies Act, 1956. Accordingly, the Transferee Company is hereby directed to preserve the books of accounts, papers and records of the Transferor Company and not to dispose of the same Without prior permission of the Central Govt. It is hereby further directed that even after the scheme is sanctioned, the Transferor company shall comply with all the applicable provisions of law and shall not be absolved from any of its statutory liabilities.
6. Notice of the petitions have been served upon the Central Govt. and Mr. Kshitij Amin, learned Central Government Standing Counsel has appeared for Mr. Devang Vyas, learned additional solicitor general for the Central Govt. An affidavit dt. 25th July 2016 has been filed by Mr. Shambhu Kumar Agarwal, the Regional Director, North Western Region, Ministry of Corporate Affairs, whereby some observations are made.
7. The attention of this court is drawn to the Additional Affidavit dated 1st August 2016 filed by Mr. Ramnik V. Bhimani, the Authorised Officer of the Petitioner Companies, whereby all the above issues have been dealt with. I have further heard submissions made by the learned counsel appearing for the Central Govt. and Mrs. Swati Soparkar, learned advocate appearing for the petitioners as follows:
(i) It has been submitted that observations made Page 4 of 8 HC-NIC Page 4 of 8 Created On Sat Aug 13 04:43:47 IST 2016 O/COMP/238/2016 ORDER vide para 2(a), (b) and (c) are factual statements and do not require any response.
(ii) The observation made vide para 2(d) pertains to clause 12.2 of the Scheme vide which the name of the Transferee Company is proposed to be changed to Arvind Envisol Limited. The petitioner company has undertaken to comply with the requisite procedure to confirm the availability of name, pay the requisite fees for the same and file the requisite forms with the Registrar of Companies in this regard. In light of the same, it is not necessary to issue any directions in this regard.
(iii) The observation of the Regional Director made vide para 2(e) pertains to the letter dated 24th June 2016 sent by the Regional Director to the Income Tax Department to invite their objections, if any. Since no reply is received from the said department within the statutory period of 15 days as envisaged by the relevant circular of the Ministry of Corporate Affairs, it can be presumed that the Income Tax dept. has no objection to the proposed scheme of arrangement. The petitioner companies have agreed to comply with the applicable provisions of the Income Tax Act and rules. In View of the same, no further directions are required to be issued to the petitioner companies in this regard.Page 5 of 8
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(iv) It has been further submitted that there are no complaints received by the Registrar of Companies as confirmed by para 2(f). The Regional Director has vide the observation 2
(g) confirmed that it has no other objection except the above and further confirmed that the proposed Scheme is not prejudicial to the interest of the shareholders of the petitioner companies and the public at large.
8. Considering all the facts and circumstances and taking into account all the contentions raised by the affidavits and reply affidavits, undertakings provided vide the additional affidavit dated 1st August 2016, I am satisfied that the observations made by the Regional Director, Ministry of Corporate Affairs, do not survive. I have come to the conclusion that the present scheme of amalgamation is in the interest of its shareholders and creditors as well as in the public interest and the same deserves to be sanctioned and the same is hereby sanctioned.
9. Prayers in terms of paragraph 19(a) of the Co. Petitions No. 238 and 239 of 2016 for the Petitioner Companies are hereby granted.
10. The petitions are disposed of accordingly. So far as the costs to be paid to the Central Govt. Standing Counsel is concerned, I quantify the same at Rs. 7,500/ per petition. The same may be paid to the learned Standing Counsel appearing Page 6 of 8 HC-NIC Page 6 of 8 Created On Sat Aug 13 04:43:47 IST 2016 O/COMP/238/2016 ORDER for the Central Govt. Costs to be paid to the Office of the Official Liquidator is quantified at Rs. 7,500/ per petition payable only by the Transferor Company. The same may be paid to the Office of the Official Liquidator.
11. The petitioner companies are further directed to lodge a copy of this order, the detailed schedule of immovable assets of the Transferor Company as on the date of the order and the Scheme duly authenticated by the Registrar, High Court of Gujarat, with the concerned Superintendent of Stamps, for the purpose of adjudication of stamp duty, if any, on the same within 60 days from the date of the order.
12. The Petitioner companies are directed to file a copy of this order alongwith a copy of the scheme with the concerned Registrar of Companies, electronically, along with INC28 in addition to physical copy as per relevant provisions of the Act.
13. Filing and issuance of drawn up order is hereby dispensed with.
14. All concerned authorities to act on a copy of this order along with the scheme duly authenticated by the Registrar, High Court of Gujarat. The Registrar, High Court of Gujarat shall issue the authenticated copy of this order along with Scheme as expeditiously as possible.
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