Delhi High Court
Eldeco Midc Sez Limtied & Ors. vs .......... on 15 December, 2014
Author: Sanjeev Sachdeva
Bench: Sanjeev Sachdeva
$~28
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 374/2014
IN THE MATTER OF
ELDECO MIDC SEZ LIMTIED & ORS. .....Petitioner
Through: Mr. Mukesh Sukhija, Advocate
for the Petitioner.
Mr. Atma Sah, Assistant
Registrar of Companies for the
Regional Director.
Mr. Rajiv Behl, Advocate for the
Official Liquidator.
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 15.12.2014 SANJEEV SACHDEVA, J (ORAL) C.A No. 1361/2014 Exemption allowed subject to all just exceptions CO.PET. 374/2014
1. This second motion petition has been filed under sections 391 & 394 of the Companies Act, 1956 ("Act") seeking sanction of the Scheme of Arrangement ("Scheme") (Amalgamation and Reduction of Capital of ===================================================== CO.PET. 374/2014 1 Transferor/Petitioner Company) of Eldeco Midc Sez Limited (hereinafter referred to as Transferor Company) with Eldeco Infrastructure and Properties Limited (hereinafter referred to as the Transferee Company) (hereinafter collectively referred to as the Petitioner Companies). A copy of the Scheme has been enclosed with the Petition.
2. The registered office of the Transferor Company is situated at New Delhi, within the jurisdiction of this Hon‟ble Court. While the registered office of the Transferee Company is situated at Faridabad, Haryana which is outside the jurisdiction of this Court.
3. Details with regard to the date of incorporation of the Petitioner Company, their authorized, issued, subscribed and paid up capital have been given in the Petition.
4. Copies of the Memorandum and Articles of Association as well as the latest audited Accounts for the year ending 31st March 2013 of Petitioner Company have also been enclosed with the Petition.
5. Copies of the Resolutions passed by the Board of Directors of the Petitioner Company approving the ===================================================== CO.PET. 374/2014 2 Scheme of Amalgamation have also been placed on record.
6. Learned Counsel for the Petitioner Companies submits that no proceedings under Sections 235 to 251 of the Companies Act, 1956 is pending against the Petitioner Companies.
7. The Petitioner Companies had earlier filed C.A (M) No. 66 seeking directions of this Court for dispensation/convening of meetings. Vide order dated May 15, 2014, this Court allowed the Application and in view of the written consents/NOC given by shareholders of the Petitioner Company, the requirement of convening meetings of Shareholders of the Petitioner Transferor Company were dispensed with. Since there are no Secured Creditors and Un-secured Creditors in the Petitioner Company, the requirement of convening meeting does not arise.
8. The Petitioner Company has thereafter filed the present Petition seeking sanction of the Scheme of Arrangement for Reduction of capital of Eldeco Midc Sez Limited and Amalgamation of Eldeco Midc Sez Limited (Transferor Company) with Eldeco Infrastructure And ===================================================== CO.PET. 374/2014 3 Properties Limited (Transferee Company). Vide order dated 29th May 2014, notice in the Petition was directed to be issued to the Regional Director, Northern Region and the Official Liquidator. Citations were also directed to be published in the „Business Standard‟ (English, Delhi Edition) and „Business Standard‟ (Hindi, Delhi Edition). Affidavit of Service and Publication has been filed by the Petitioners showing compliance regarding service of the Petition on the Regional Director, Northern Region and the Official Liquidator, and also regarding publication of citations in the aforesaid newspaper on 1st September 2014. Copies of the newspaper cuttings, in original, containing the publications have been filed along with the Affidavit of Service.
9. In response to the notice issued on the Petition, the Official Liquidator has filed Report dated 17.09.2014. It has been stated that the Official Liquidator has not received any complaint against the proposed Scheme of Amalgamation. It has further been stated in the Report that the affairs of the Petitioner Companies do not appear to have been conducted in a manner prejudicial ===================================================== CO.PET. 374/2014 4 to the interest of its members or to public interest as per the 2nd proviso of Section 394 (1) of the Act.
10. In response to the notices issued in the Petition, Mr. A K Chatuevedi, Learned Regional Director, Northern Region, Ministry of Corporate Affairs has filed his Affidavit dated November 17, 2014. Relying on Clause 9 of the Scheme of Amalgamation, he has stated that, upon sanction of the Scheme of Arrangement for reduction of capital of Eldeco Midc Sez Limited and Amalgamation of Eldeco Midc Sez Limited (Transferor Company) with Eldeco Infrastructure and Properties Limited (Transferee Company), all the employees of the Transferor Company shall become the employees of the Transferee Company without any break or interruption in their services upon sanctioning of the Scheme. Further it submits that despite notice, income tax authorities have not raised any observation with respect to the scheme.
11. Further, learned Regional Director in his affidavit that observed that Transferee Company has applied for compounding of offence for contravention of provisions of Foreign Exchange Management Act, 1999 and the same were compounded by RBI vide its order dated ===================================================== CO.PET. 374/2014 5 09.04.2013. Further, it states that a case under section 120 of the IPC is pending before Hon‟ble Patiala House Court, New Delhi against Mr. Shiv Kumar Garg, Director of the Company vide CC No 1/2013 and RC.No.2172012A0005/CBI/ACU-V/New Delhi under section 120B of IPC.
12. In response to aforesaid observation, learned Counsel for the Petitioner Company submits that the Scheme has already been sanctioned with regard to the Transferee Company by the High Court of Punjab and Haryana vide order dated 5th August 2014.
13. Further, learned Regional Director in his affidavit has submitted that Registrar of the Companies has observed that the Transferee Company has contravened the provisions of section 297 of the Act.
14. In response to aforesaid observation, learned Counsel for the Petitioner Company submits that compounding application under section 621A of the Act before Company Law Board has already been filled and same is pending.
===================================================== CO.PET. 374/2014 6
15. It is however clarified that the sanction of the Scheme will not come in way of the compounding application being considered on merits.
16. Further, it is directed that the Registrar of Companies is at liberty to independently examine the books of accounts irrespective of the sanction of the scheme and in case any violation or breach of any statutory provision is found, the Directors of the Transferor and Transferee Company shall be liable irrespective of the sanction of the scheme.
17. In view of the aforesaid clarification and undertaking the concerns of the Regional Director have been duly addressed.
18. Mr. Anil Kumar Dhanda, the Director of the Transferor Company has filed an affidavit dated 15.09.2014 confirming that neither the Petitioner Company nor the counsel has received any objection pursuant to citations published in the newspapers with respect to the Scheme.
19. In view of the approval accorded by the shareholders of the Petitioner Company, Representation/Report filed by the Official Liquidator and the Regional Director, Northern Region and the submissions of the Petitioner ===================================================== CO.PET. 374/2014 7 Company, there appears to be no impediment to the grant of sanction to the Scheme of Amalgamation. Consequently, sanction is hereby granted to the Scheme of Amalgamation under Sections 391 to 394 & 100 to 104 of the Companies Act, 1956. The Petitioner Companies will comply with the statutory requirements in accordance with law.
20. Certified copy of the order be filed with the Registrar of Companies within 30 days from the date of receipt of the same. In terms of the provisions of sections 391 and 394 of the Companies Act, 1956, and in terms of the Scheme, the whole or part of the undertaking, the property, rights and powers of the Transferor Company be transferred to and vest in the Transferee Company without any further act or deed. Similarly, in terms of the Scheme, all the liabilities and duties of the Transferor Company be transferred to the Transferee Company without any further act or deed. Upon the scheme coming into effect, the Transferor Company shall stand dissolved without winding up.
21. It is, however, clarified that this order will not be construed as an order granting exemption from payment of stamp duty or taxes or any other charges, if payable ===================================================== CO.PET. 374/2014 8 in accordance with any law; or permission/compliance with any other requirement which may be specifically required under any law.
22. Learned Counsel for the Petitioner states that the Petitioner Companies (collectively) would voluntarily deposit a sum of Rs.1,00,000/- in the Common Pool fund of the Official Liquidator within three weeks from today. The statement is accepted.
23. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J DECEMBER 15, 2014 gb ===================================================== CO.PET. 374/2014 9