Alert India Pvt. Ltd v. Aar Aay Products Pvt. Ltd

1. These second motion petitions have been filed under Sections 391 and 394 of the Companies Act, 1956 ('Act') by the Petitioner companies seeking sanction for the,scheme of Arrangement/ Demerger ('scheme') of Unit II of Aar Aay Products Pvt. Ltd. (hereinafter referred to as 'Detnerged company') with Alert India Pvt. Co. Pet. Nos. 447 and 448 of 2012 Page I of[6] 2013:DHC:8556 Ltd. (hereinafter referred to as 'Resulting company') fhereinafter collectively referred to as 'Petitioner companies'] whereby entire undertaking of Unit II of the Demerged company, as a going concern, together with all the assets and liabilities relating thereto are proposed to be transfened to and vested in the Resulting company on the terms and conditions and in the manner fully stated in the Scheme.

2. Theregistered offices of the Petitioner companies are situated at New Delhi, within the jurisdiction of this Court.

3. The details of the dates of incorporation of the Petitioner companies, its authorized, issued, subscribed and paid up capital have been given in the petition.

4. The copies of the Memorandum and Articles of Association as well as the latest audited annual accounts for the year ended 31tt March 20II and the provisional accounts as on 15'h November 20II of the Petitioner companies have also been enclosed with the CA (M) Nos. 116 and 117 of 2012.

5. The copies of the resolutions passed by the Boards of Directors Co. Pet. Nos. 447 ond 448 of 2012 Pnge 2 of 6 It ('BoDs') of the Petitioner companies approving the Scheme have also been placed on record.

6. Leamed counsel for the Petitioner companies submits that no proceedings under section 235 to 25L of the Act are pending against the Petitioner companies.

7. The Petitioner companies had earlier filed CA (M) Nos. 116 and 117 of 20t[2] seeking directions of this Court for the dispensation/ convening of the meetings. By,order dated 31't August 2012 this Court allowed the applications, and the requirement of convening the meetings of the shareholders, secured and unsecured creditors of the Petitioner companies were dispensed with.

8. The Petitioner companies had thereafter filed the present petitions seeking sanction to the Scheme. By order dated 30th Octobet 2012 notice of the petition was directed to be issued to the Regional Director ('RD'), Northern Region. Citations were also directed to be published in "Indian Express" (English) and "Jansattt' (Hindi) and the same were published on 21't Decembet 2012. The proof of service and publication has been filed by the Petitioner company Co. Pet. Nos. 447 and 448 of 2012 Page[3] of[6] showing compliance regarding publication of citation in the aforesaid newspapers. Copies of the newspaper cuttings containing the publications have also been filed along with the said proof.

9. Learned counsel for the Petitioner companies submits that no objection has been received to the scheme from any party pursuant to the citation published in the newspapers.

10. In response to the notice issued in the petitions, the RD has filed his affidavit dated 28th January 2013. Relying on the scheme, he has stated that upon sanction of the scheme, all the stafflemployees of the Unit II of Demerged company shall become the employees of the Resulting company without any break or intemrption in their services. The RD has pointed out that although the appointed date has not been mentioned in the Scheme. it has been mentioned in the petition as 1't April 2012. Further, the RD has stated that increase in the authorizedcapital and change in the Memorandum and Articles of Association will take place only after following procedure prescribed in the Act. The RD has pointed out some clerical/typographical mistakes in the paid up capital and the reserves and surplus figures. Co. Pet. Nos. 447 ond 448 of 2012 Poge 4 of 6 The points raised by RD have been duly clarified'by the Petitioner companies in their reply affidavit dated 10th May 2013' I 1. In view of the approval accorded by the shareholders and creditors of the Petitioner companies, the,affidavit filed by the RD and the affidavit filed by the Petitioner companies in response thereto, there appears to be no impediment to the grant of sanction to the Scheme. Conseqpently, sanction is hereby granted to the Scheme under Sections 391 and 394 of the Act. The Petitioner companies will comply with the statutory requirements in accordance with law.

12. A 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 Sections 391 and 394 of the Act, all the property, rights, assets and powers of Unit II of the Demerged company shall be transferred to and vest in the Resulting company without any fuither act or deed. Similarly all the liabilities and duties of the Unit II of tn. Demerged company shall be transfened to the Resulting company without any further act or deed.

13. It is, however, clarified that this order will not be construed as an order granting exemption from payment of stamp duty or any other Co. Pet. Nos. 447 and 448 of 2012 Poge 5 of 6 charges, if payable, in accordance with any law; or permission/ compliance with any other requirement which may be specifically required under any law.

14. The Petitioner companies states that they would voluntarily deposit a sum of Rs. 50,000/- in the Common Pool Fund of the OL within three weeks from todav. The statement is taken on record.

15. The petitions are allowed in the above terms.

16. Order be given dasti.