Full Text
HIGH COURT OF DELHI
CO.PET. 614 /2013
CENEXT CONSULTING & INVESTMENT PRIVATE LIMITED &
ANR ..... Petitioner
Through: Mr. Kunal Juneja, Advocate for the Petitioners.
Mr. Atma Sah, Assistant Registrar of Companies for the Regional
Director.
23 .07.2014 SANJEEV SACHDEVA, J (ORAL)
JUDGMENT
1. This second motion joint Petition has been filed under sections 391 to 394 of the Companies Act, 1956 (“Act”) seeking sanction to the Scheme of Arrangement (Scheme) of Cenext Consulting & Investment Private Limited (Demerged Company) and Cenext Investment & Services Private Limited (Resulting Company) (Collectively referred as the Petitioner Companies). A copy of the Scheme has been enclosed with the petition. 2014:DHC:3466 CO.PET. 614 /2013 2
2. The registered offices of the Petitioner Companies are situated at New Delhi, within the jurisdiction of this Court.
3. The details of respective dates of incorporation of the Petitioner Companies, their authorised, issued, subscribed and paid up capital have been set out in the petition.
4. The copies of the Memorandum and Articles of Association of the Petitioner Companies have been enclosed with the petition.
5. The copies of Resolutions passed by the Board of Directors of the Petitioner Companies approving the Scheme have also been filed along with the petition.
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 CA (M) 137 of 2013 seeking directions of this Court for dispensation/convening of meetings. Vide Order dated 11th October, 2013, this Court allowed the Application and requirement of convening all the meetings of Shareholders and Creditors of the Demerged Company and the Resulting Company were dispensed with. CO.PET. 614 /2013 3
8. The Petitioner Companies had thereafter filed the present petition seeking sanction to the Scheme of Arrangement. Vide Order dated 27th November, 2013, notice of the petition was directed to be issued to the Regional Director, Northern Region, Ministry of Corporate Affairs. Citations were also directed to be published in and “Indian Express” (English) and “Nav Bharat Times” (Hindi). Affidavit of Services and Publication have been filed by the Petitioners showing compliance regarding services of the petition on the Regional Director, Northern Region and also regarding publication of Citations in the aforesaid newspaper. Copies of the newspaper cuttings, in original, containing the publications have also been filed along with the Affidavit of Services.
9. In response to the notice issued in the petition, learned Regional Director, Northern Region, Ministry of Corporate Affairs has filed his Affidavit/Report dated 22nd May 2014. Relying on the Scheme of Arrangement, he has stated that, upon sanction of the Scheme, all the employees of the Demerged Company engaged in “investment division” shall become the employees of the Resulting Company without any break or interruption in their services.
10. The Regional Director has raised concern that on account of sanction of the Scheme unissued authorised capital of the Demerged Company shall split and shall stand reduced by an amount CO.PET. 614 /2013 4 Rs.1,80,00,000/- and the same is sought to be transferred/added to the authorised capital of the Resulting Company thereby resulting in an increase in the authorised share capital of the Resulting Company. The concern raised by the Regional Director is that the stamp duty, if not already paid, would be liable to be paid by the Resulting Company.
11. Learned counsel for the petitioner submits that in terms of the law as laid down by the Court in case of Hotline Holdings Private Limited, 2004 (76) DRJ 50, no fresh stamp duty is liable to be paid. No payment of fee to the Registrar of Companies or to the State Government is liable to be paid.
12. It is, accordingly, clarified that no payment of fee to the Registrar of Companies or the Stamp Duty would be liable to be paid to the State Government by the Resulting Company, if not already paid by the Demerged Company, at the time of the sanction of the authorised capital.
13. The other concern raised by the Regional Director with regard to the Scheme is that the Demerged Company will be required to file a petition under Section 100 to 104 of the Act for reduction of share capital. CO.PET. 614 /2013 5
14. In response to the concern raised by the Regional Director, relying on the decision of this Court in Cecil Webber Engineering Ltd. & Ors., Company Petition No: 301 of 2012 dated 19th December 2012, the learned Counsel for the Petitioner Companies states that no separate petition under Section 100 to 104 of the Act for reduction of share capital is required to be filed.
15. Learned Regional Director in his affidavit has further stated that a letter was written to the Income Tax Department. However, no objection has been received from them.
16. It was further observed by the learned Regional Director that the Petitioner Companies be directed to comply with the Section 2(19AA) of the Income Tax Act, 1961.
17. Learned Counsel for the Petitioner Companies in response to the above observation, undertakes that the Petitioner Companies shall comply with requirement of section 2(19AA) of the Income Tax Act,
1961.
18. In view of the aforesaid clarification and undertaking given by the Petitioner Companies, the concerns of the Regional Director have been duly addressed.
19. Learned Counsel for the Petitioner Companies submits that no objection has been received to the Scheme of Arrangement from any CO.PET. 614 /2013 6 other party confirming that neither the Petitioner Companies nor their Counsel has received any objection pursuant to Citations published in the newspapers.
20. In view of the approval accorded by the Shareholders and Creditors of the Petitioner Companies; representation/reports filed by the Regional Director, Northern Region to the proposed Scheme of Arrangement, there appears to be no impediment to the grant of sanction to the Scheme of Arrangement. Consequently, sanction is hereby granted to the Scheme of Arrangement under sections 391 and 394 of the Companies Act, 1956. The Petitioner Companies will comply with the statutory requirements in accordance with law.
21. Certified copy of the formal 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, all the property, rights and powers of the Demerged Company be transferred to and vest in the Resulting Company without any further act or deed. Similarly, all the liabilities and duties of the Demerged Company are transferred to the Resulting Company without any further act or deed. Upon the Scheme coming into effect, the Demerged Company shall stand dissolved without winding up. CO.PET. 614 /2013 7
22. It is, however, clarified that this Order will not be construed as an Order granting exemption from payment of stamp duty or any other charges, if payable, in accordance with any law; or permission/compliance with any other requirement which may be specifically required under any law.
23. The Petition is allowed in the above terms. Order Dasti.
SANJEEV SACHDEVA, J JULY 23, 2014