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+ COMPAI\"Y PETITION No. 490 of 2012
Suzuki Powertrain India Limited & Anr. .. . ...Petitioners
Through: Mr. Anirudh Das and Mr. Manu
Krishnan, Advocates for the
Petitioner Companies
Mr. K.S. Pradhan, Dy. Registrar of
Companies for the Regional Director.
Mr. Rajiv Bahl, Advocate for the
Official Liquidator
ORDER
1. This second motion petition has been filed under Sections 391 and 394 of the Companies Act, 1956 ('Act') by Suzuki Porvertrain India Limited ('Transferor company') with Maruti Suzuki India Limited ('Transferee company') [hereafter collectively referred to as 'the Petitioner companies'] seeking sanction of the Scheme of Amalgamation ('scheme'). Approved Scheme has been enclosed with petition as 'Annexure A,.
2. The registered offices of the Petitioner companies are situated at New Delhi, within the jurisdiction of this Court.
3. The details with regard to the dates of incorporation of the Petitioner Co. Pet, No.490 of 2012 Poge l of 9 2013:DHC:8606 companies, their authorized, issued, subscribed and paid up capital have been enclosed with the petition.
4. Copies of the Memorandum and Articles of.Association as well as the audited accounts of the Petitioner companies for the year ended 31't Mbrch 2012 respectively have also been enclosed with the petition.
5. The copies of the Resolutions passed by the Boards of Directors of the Petitioner companies approving the Scheme have also been enclosed with the petition.
6. It has been submitted that no proceedings under Sections 235 to 251 of the Act are pending against the Petitioner companies.
7. The Petitioner companies had earlier filed Company Application (M) No.128 of 2012 seeking dispensation with the convening of the meetings of the equity shareholders of the Transferor company and for directions for convening the meetings of the unsecured creditors of the Transferor company and equity shareholders and unsecured creditors of the Transfere. do,npuny. By order dated 22"d August 2012, this Court had dispensed with the requirement of convening meeting of the equity 3hareholders of the Transferor Co. Pet. No.490 of 2012 /, company and the secured creditors of the Transferee company. Further this Court had directed the convening of the meetings of the unsecured creditoi's of the Transferor company and the equity shareholders and unsecured creditors of the Transferee company.
8. The said meetings of the unsecured creditors of the Transferor company and equity shareholders and unsecured creditors of the Transferee company -vvoro held on 29fr September 2012. The unsecured creditors of the Transferor company and the equity shareholders and unsecured creditors of the Transferee company have approved the Scheme.
9. The Petitioner companies thereafter filed the present petition seel:ing sanction of the Scheme. By order dated 17th October 2012, notice on the petition was directed to be issued to the Regional Director ['RD'] (Northern Region) and the Official Liquidator ('OL'). Notice of petition was also directed to be published in Indian Express (English) and Jansatta (Hindi). Affidavit of service and publication has been filed by the Petitioner companies showing compliance regarding service of the petition on the RD (Northern Region) and the OL, and also regarding publications of notice of petition in the aforesaid newspapers on 9th January 2013. Copies of the newspapei, in original, containing the publications have been filed along with the affidavit of service.
10. Pursuant to the notices issued, the OL sought information from the Petitioner companies. Based on the information received, the OL has filed report wherein it has been stated that the affairs of the Petitioner companies do not appear to have been conducted in a manner prejudicial to the interest of its members, creditors or to public interest.
11. In response to the notice, Mr. Rakesh Chandra, the RD has filed his affidavit dated 22"d January 20L[3].Relying on Clause 3.[2] (VID of Part II of the Scheme, Mr. Rakesh Chandra has stated that, upon sanction of the Scheme, all the employees of the Transferor company shall become employees of the Transferee company without any break or intemrption in service upon sanctioning of the Scheme by the Court.
12. The RD has in Para 5.[1] of the affidavit dated 22"d lanuary 2013 submitted that the Transferee company may be asked to follow the procedure prescribed under the Act to amend its Memorandum of Association. co. Pet. No.490 of 2012
13. The RD has in para 6 of the representation affidavit dated 22nd January 2013 submitted that the Transferee company may be asked to give an undertaking to comply with statutory requirements of the Reserve Bank of India ('RBI') under the Foreign Exchange Management Act, 1999 ('FEMA') for issuance of shares to Suzuki Motor Corporation, Japan pursuant to the Scheme.
14. The RD has in para 7 of the affidavit dated 22"d January 2013 submitted that the Transferee company may be asked to comply with the conditions stipulated by the Bombay Stock Exchange ('BSE') in its letter dated 15th June 2012 as regards the locking in of 25Yo of the new equity shares to be issued for a period of 3 years.
15. The RD has in para 8 of the affidavit dated 22"d January 2013 submitted that the Competition Commission of India has approved the proposed combination under sub section (1) of Section 31 of the Competition Act, 2002.
16. The RD has in para 9 of the affidavit dated 22"d Jarnary 2013 stated that the as the Transferee company has not filed its balance sheet as on 31't March 2012 there is contravention of provision of Section 220 of the Act. Co. PeL No.490 of 2012
17. The Petitioner companies in response to the affidavit dated 22"d January 2OI[3] have filed a reply dated 25ft January 2013 stating that the change in the objects clause of the Memorandum of Association of the Transferee company is being effected as an integral part of the Scheme. It is- further submitted that the equity shareholders of the Transferee company have approved the Scheme including the proposed change in its Memorandum of Association and thTt upon sanction of the Scheme, the order of this Court shall be filed with the RoC and the same shall be treated as intimation to the Registrar of Companies ('RoC') for change in the Memorandum of Association. The Petitioner companies rely on the judgments of ^In Re: PMP Auto Industries Limited tTgg[4]) 80 comp cas 289 (Bom)J,judgment dated 3'd March z0lr of this Court in Company Petition No.448 of 2010, judgment dated 17 October 2011 of this Court in Company Petition No.318 of 201I, In Re: Hotline Hol Cetdings Private Limited t\bT, 127 Comp Cos 165 (Del)J; In Re: Mekaster Valves and Engineering Services Private Limited tQ009) 149 Comp Cas 593 (Guj)].It is accordingly submitted that there is no requirement to follow the separate procedure prescribed under the Act for altering the Memorandum of Association.
18. It has also been stated that the Transferee company shall comply with the applicable rules and regulations issued by the RBI as also the provisions of the Co. Pet. No.490 of 2012 Ptge 6 of 9 FEMA with respect to any foreign shareholding in its issued and paid up share capital as regards the issuance of shares to Suzuki Motor Corporation, Japan.
19. It has also been stated that the Transferee company undertakes to lock in 25% of new equity shares i.e. 32,92,500 equity shares for a period of three years from the date of listing of the new shares on the BSE and the Transferee company shall comply with the conditions stipulated by the BSE in its communication dated 26th June 2012.
20. It has also been stated that the Transferee 2013, fited its balance sheet as at 31't March extended period up to l5th February 2013. company has, on 15th January 2012 with the RoC, with the 2I. The objections raised by the RD with respect to alteration of the Memorandum of Association of the Transferee company are without merit in view of the judgments relied upon. This Court has held that the sanction under Sections 391 to 394 of the Act is a single window clearance and there is no requirement of a separate procedure to bd followed for the amendment of the Memorandum of Association. It is noticed that the change in the object clause is being implemented as an integral part of the Scheme. The equity shareholders of the Petitioner companies have approved the Scheme in its r l/) LU entirety. Upon sanction of the Scheme, the order of the Court shall be filed with the RoC and the same shall constitute compliance of the provisions of the Act for change in the iVlemorandum of Association. The undertakings given at paras 3 (d) and para 3 (e) of the reply affidavit dated 25ft January 2013 are taken on record.
22. The Petitioner companies in the affidavits dated 23'd January 2013 and25th Jaquary 2013 have stated that no objection has been received by the Petitioner companies or its counsel to the proposed Scheme from any party. It is further submitted by the counsel for the Petitioner companies that even as on date, no objection has been received to the proposed Scheme from any other patty.
23. In view of the approval accorded by the equity shareholders and unsecured creditors of the Transferee company and the equity shareholders, secured creditors and unsecured creditors of the Transferee company, the affidavit filed by the RD to the proposed Scheme and the report of the OL, there appears to be no impedirnents to the grant of sanction to the Scheme. Consequently, / sanction is hereby granted to the Scheme under Sections 391 to 394 of the Act. The Petitioner companies will comply with the statutory requirements in accordance with law. In terms of the provisions of Sections 391 to 394 of the Act and in terms of the Scheme, the whole of the undertaking, properties, Co. Pet. No.490 of 2012 Page I of 9 t/ rights and powers of the Transferor company be transferred to and vest in the Transferee company without any further act of deed. Similarly, in terms of the Scheme, all liabilities and duties of the Transferor company be transferred to the Transferee company without any fuither act or deed. Upon the Scheme coming into effect, the Transferor company shall stand dissolved without winding up. 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, in accordance with any law or permission/compliance with any other requirement which may be specifically required under any law.
24. A certified copy of the order be filed with the RoC within 30 days from the date of receipt of the same.
25. Leamed counsel for the Petitioner companies voluntarily states that the cost of Rs. 50,000 would be deposited in the Common Pool Fund of the OL within four weeks from today. The said statement is taken on record.
26. The petition is allowed in the above terms.
27. Order be given dasti. 29th Janu ary 2013 \ I 1r. v