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COMPANY PETITION NO. 507 OF 2OI2 Trane India Private Limited
Through: Mr. N.K. Kaul, Senior Advocate with Mr. Shiv K Suri, Ms. Bhumika Batra & Mr. Vivek B. Saharya, Advocates for Transferor Company.
Mr. K.S. Pradhan, Deputy Registrar of Companies for Regional Director, Northern Region.
Mf,.Rajiv Bahl, Advocate for the Official Liquidator.
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ORDER
1. This second motion joint Petition which has been filed under Sections 391 and 394 of the Companies Act, 1956 ('Act') by the Petitioner company seeks sanction of the Scheme of Amalgamation ('scheme') of Trane India Private Limited (Transferor company) with Service First Aircon Private Limited (Transferee Company).
2. The registered office of the Transferor company is situated at New Delhi, within the jurisdiction of this Court. The registered office of the Transferee Company is situated at Mumbai, Maharashtra. o CA(M) Itsol20t[2] Poge I of0 2013:DHC:8608
3. The details with regard to the date of incorporation of Transferor and Transferee Companies, their 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 unaudited Financial Statement for the year ended 31't March, 2012 of the Transferor and Transferee Companies have also been enclosed with the petition.
5. The copies of the Resolution passed by the Board of Directors of the Transferor Company approving the Scheme have also been placed on record.
6. It has been submified that no proceeding under Sections 235 to 251 of the Act is pending against the Transferor Company.
7. The Transfer Company had earlier filed Co. Appl.
(M) No. 115 of 2012 seeking direction of this Court for dispensation of the meetings of the shareholders and the creditors. By order dated 14ft September 20L[2], the Court observed, that as regards the meeting of unsecured creditors a prayer had been made for its dispensation keeping in view that the Transferor Company: CA (M) I Is of 2012 Page 2 of[8] a) Had submitted written consent/NOC from 9 out of total 14 unsecured creditors of representing 83.71% in value and 64'28Vo in number. b) Had deposited a demand draft dated 12th September, 2012 drawn on citibank N.A. bearing number 913440 in favour of "The Rs.15,00,000f (Rupees Fifteen Lakhs only) payable atpar towards securing the interest of all the unsecured creditors of the Transferor company. c) Had undertaken to issue individual notice of hearing of Company Scheme Petition to all the unsecured creditors of the Transferor ComPanY. d) Had undertaken to publish the notice of hearing of Company Petition in two newspapers, namely the 'National Herald' in English and in 'Vyapar Bharti' in Hindi language and in such other newspaper as may be directed by the court, the meeting of the unsecured creditor is dispensed with.
8. The Transferor Company filed the Company Application No. 1914 of 2012 in publish Herald' offices company Application (M) No. 115 of 2012 as it was unable to the Notice of hearing of the company Petition in 'National in English language, since the newspaper'has closed down its at New Delhi and the said newspaper has stopped publishing any cA (M) I Is of 2012 Page 3 of[8] { notices arising out of the matters pursuant to the directions of this Court' The application was allowed by order dated 9ft october,2012 passed by this Court, directed the Transferor Company to publish the notice of hearing of company Petition in the newspaper 'Indian Express' in English language having circulation in Delhi' g. The Transferor Company complied with the requirements as undertaken by it and as recorded in the order dated 14h September 20L[2] passed in co. App (M) No.l15 of 2012. The Transferor company filed an affidavit in respect of the compliances by it on 12ft October 2012'
10. By order dated 2nd November 2012 notice of the petition was directed to be issued to the Official Liquidator ('OL') and Regional Director ('RD',), Northern Region. Notice was accepted on behalf of the RD and the oL. citations were also directed to be published in 'Indian Express' (English) and 'Vyapar Bharti' (Hindi). Affidavits of publication have been filed by the Petitioners showing compliance regarding publication of citations in the aforesaid newspapers on 26ft November 2012. Copies of the newspapers cuttings, in original, containing the publications have been filed along with thetffidavit ot'S.*ir.. CA (M) I Is of 2012 Page 4 of I
11. In response to the notice the RD has filed his Affidavit on 14ft December 2012. Retying on Clause 7.[1] of Part-III of the Scheme, he has stated that all the stafflemployees of the Transferor Company shall become the employees of the Transferee Company without any break or intemrption in their services upon sanctioning of the Scheme by the Court. The RD has further stated that para 11.[6] of Part IV of the Scheme provides the Accounting Treatment in detail, which is in accordance with the Accounting,standards issued by the Institute of Chartered Accountants of India. The RD has further submitted that on perusal of the shareholding pattern of the Transferor Company, it is observed that all shares therein are held by the foreign shareholders. The RD submitted that the Transferor Company may be asked to give an undertaking that it would comply with all requirements stipulated by the Reserve Bank of India ('RBI') under FEMA for transactions involving Foreign BanklEntities. The RD has further submitted that the Court may consider the submissions made in para 5 of his affidavit and decide the case on merits subject to the outcome of the proceedings of the High Court of Bombay. CA (M) IIs of 2012 Page 5 ol 8
12. The Leamed counsel for the Transferor Company submits that the Transferee Company being registered in Mumbai had also filed Company Scheme Petition No. 550 of 2012 in the High Court. By order dated 5ft October 20l2the High Court of Bombay made the said Scheme absolute.
13. Pursuant to the notices issued, the OL had sought information from the Transfer Company. Based on the information received, the OL has filed his report on lTftDecember 2Ol[2] in which it is stated that he has not received any complaint against the proposed Scheme from any person/party interested in the Scheme in any manner and that the affairs of the Transferor Company do not appear to have been conducted in a manner prejudicial to the interests of its members or to public interest.
14. No objection has been received to the Scheme from any other parly. Learned counsel for the Petitioner Company has submitted that the Petitioner Company has filed an affidavit of Mr. Rajesh Sikka, Director of the Transferor Company dated 8th January 2013 confirming that the Transferor Company has not received any objection pursuant to citations published in the newspapers. CA (ItI) IIs of 2012 Page 6 of$
15. In view of the approval accorded to the Scheme by the shareholders and creditors of the Petitioner Company, the affidavit/report filed by the RD and the OL, sanction is hereby granted to the Scheme under Sections 391 and 394 of the Act. The Transferor Company will comply with the statutory requirements in accordance with law including complying with all the requirements of the RBI as required under FEMA for above transactions involving Foreign Banks/Entities.
16. A certified copy of this order be filed with the Registrar of Companies ('R9C') within 30 days from the receipt of the same. In terms of the provisions of Sections 391and 394 of the Act and in terms of the Scheme, the whole of the undertaking, the properties, rights and powers of the Transferor Company shall 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.
17. It is, however, clarificd that this order will not be construed as an order granting exemption from payment of stamp duty or taxes or any CA (M) I Is of 2012 Page 7 ol[8] other charges, if payable in accordance with any law; permission/compliance with unl other requirement which may specifically required under any law.
18. The amount of Rs.15 Lakhs deposited in this Court toward securing the interest of all the unsecured creditors of the Transferor Company as observed in order dated 14th September 2012 in Co. App. (M) 115 of 2012 of the first motion be returned forthwith to the Transferor Company by the Registry together with the interest, if any, accrued thereon.
19. The Petitioner company voluntarily state that it would deposit a sum of Rs.l lakh with the Common Pool Fund of the OL within three weeks from today. The statement is taken on record.
20. The Petition is allowed in the above terms.
S. MURALIDHAR, J.