Full Text
Date of Judgntent: 10.9.2012 COMPANY PETITION NO: 275 of 2012
(ORDINARY ORIGINAL COMPANY JURTSDICTION)
IN THE MATTER OF THE COMPANIES ACT, tg56;
AND
IA IN THD MATTER OF SECTION 391 TO 394 OF THE
COMPANIES ACT,1956;
AND
IN THE MATTDR OF SCHEME OF'AMALGAMATION BETWFEN
INFINITE DATA SYSTEMS PRIVATE LIMITED. a company incorporated under Companies Act, 1956, having its
Registered Office at: 155, Somdutt Chambers II, 9, Bhikaji Carna Place, New Delhi, India i PETITIoNER / TRANSFERoR CoMPANY 1
INFINITE INFOSOFT SERVICES PRIVATE LIMITED, a conlpany incorporated under Companies Act, 1956, having its
Registered Office at: 155, Sorndutt Chambers II, 9, Bhikaji Cama Place, New Delhi. India.
PtrTITIONER / TRANSFEROR COMPANY 2 C.P.No'275/2012 paee l of I I
2012:DHC:9448 AND INFINITE COMPUTER SOLUTIONS (INDIA) LIMITED, a company incorporated under Companies Act, 1956, having its
Registered Office at: 155, Somdutt Chambers II, 9, Bhikaji Cama Place, New Delhi, India.
NON-PETITIONER / TRANSFEREE COMPANY
Through, ASP Advocates: Mr. Abhishek Seth, Mr. Rajeev Kumar and
Mr. Rahul Raj, Advocates for the Petitioners.
Mr. Pradhan, Deputy Registrar of Companies, for the Regional Director
Mr.Rajeev Bahl, Advocate, for the Official Liquidator
(hereinafter referred to as Transferor Company 1) and Infinite Infosoft
Services Private Limited (hereinafter referred to as Transferor
Company 2) (both together referred to as Petitioner Companies), in respect of a Scheme of Amalgamation (Scheme for short) between the said Petitioner Companies and Infinite Computer Solutions (India)
Limited (hereindfter referred to as Transferee Cornpany). As per the
C.P.No.275120L2 Page 2 ofll Y rq n schefiie, the Transferor Companies are proposed to be merged in the
Transferee Cornpany.
JUDGMENT
2. The registered offices of the Petitioner Cornpanies and the Transferee Company are situated in New Delhi, within the jurisdiction of this Court. The present petition has been filed only by Transferor Companies.
3. Details with regard to the date of incorporation of Petitioner Companies and Transferee Company, their authorized, issued, subscribed and paid up capital have been given in the petition.
4. Copies of the Memorandum and Articles of Association of the Petitioner Companies and Transferee Company as well as their latest audited Annual Accounts have also been placed on record.
5. Copies of the Resolutions passed by the Board of Directors of the Petitioner Companies and the 'fransferee Company approving the Scheme have also been placed on record. C.P.No.275120L[2] Page3ofIl.+ \ )
6. It has been subrnitted that no proceedings under Sections 235 to 251 of the Companies Act, 1956 are pending against the Transferee Company and Petitioner Companies.
7. The Petitioner Companies had earlier filed CA (M) No 89 of 2012 seeking directions of this Court for dispensation of meetings of Shareholders, Unsecured creditors and Secured creditors of the Petitioner Cornpanies. Vide order dated May 16, 2012, this Court allowed the Application and dispensed with the requirement of convening meetings of Shareholders, Unsecured creditors and Secured Creditors of the Petitioner companies.
8. The Petitioner Companies thereafter, filed the present petition seeking sanction of the Scheme. Vide order dated May 30, 2012 notice in the petition was directed to be issued to the Regional Director, Northern Region and Official Liquidator and a copy of the Petition was directed to be served upon the Registrar of Companies. Citations were also directed to be published in Indian Express' (English, Delhi Edition) and Danik Jagaran (Hindi, Delhi Edition). Affidavit of Service and Publication has been filed showing cornplia:rce regarding service of the C.P.No.275120L[2] Pagc4ofll 'ir t > petition on the Regional Director, Northern Region, the Registrar of Companies and the Official Liquidator, and also regarding publication of citations in the aforesaid newspapers on August 13,2012. Copies of the newspaper cuttings, in original, containing the publications have been filed along with the Affidavit of Service.
9. Pursuant to the notices issued, the Official Liquidator sought inforrnation from the Petitioner Companies. Based on the information received, the Official Liquidator has filed his report dated 3'd September, 2012 wherein he has stated that he has not received any complaint against the proposed Scherne from any personlparty interested in the Scheme in any manner and 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. The Official Liquidator has not raised any objection to the scheme of amalgamation.
10. In response to the notices issued in the petition, Mr. R.K. Chandra, Learned Regional Director, Northern Region, Ministry of Corporate Affairs has filed his Affidavit dated 05.09.2012.InPara 5, of the Affidavit the Learned Regional Director, has raised an observation C.P.No.2751201.[2] Page5ofll f > to the fact that the Transferee Company has not approached this High Court for the approval of the scheme. Further it is observed by the Learned Regional Director that the order of this court dated 16.05.2012 does not grant exemption to the Transferee Company from convening rneetings of its shareholders and creditors. I 1. In response to the above mentioned observations an affidavit dated 7tr' September, 2OI[2] has been filed by Mr. Navin Chandra, authorized signatory of the Petitioner Companies and the Transferee Company, wherein it is stated that, the Petitioner Companies are the wholly owned subsidiary Cornpanies of the Transferee Cornpany. Further, it is stated that in view of the Judgments of various High Courts (i.e. Hon'ble High Court of Delhi in Sharat Hardruare Industries Pvt Ltd ITTB and Hon'ble Bombay High Cottrt in Mahaamba Investments Ltd vs IDI Ltd200I etc) wherein it has been held that if wholly owned subsidiaries are being merged into the Transferee Company and since the interest of the shareholders and creditors of the Transferee Company is not being effected in a proposed schetne, C.P.No.275l2012 Page 6 ol'l l i { therefore the Transferee Company need not be an applicant before the Hon'ble High Court. Further, it has been stated in para 2 of the order of this Court dated 16.05.2102 passed in Company Application (M) No.89 of 2012 that: "it is pertinent lo mcntion that the scheme has been flecl by the hvo Transferor Companies and not the Transferee Contpany, as both the Tr"ansferor Contpanies are wholly ou,ned subsicliaries of the Transferee Contpany" a In vier.v of the above said clarifications. the observations made by the Regional Director no longer survive.
12. The Regional Director in para no. 6 of his affidavit has observed that with regard to the buy-back of shares undertaken by the Transferee Company, it was required to pass a Special Resolution of its members whereas it has not filed such resolution. | 13. In response to the aforesaid observation of the Regional Director, it is stated that as per Section TTA (2) of the Cornpanies Act 7956, a buyback of shares up to 10Yo of the total paid-up equity capital and free reserves would not require a special resolution in a general meeting of the company, and the same rnay be authorized by a resolution passed at the meeting of the Board of Directors. The buyback which had been C.P.No.275/201.[2] PageTofll a undertaken by the Transferee Company was less than 10% of the total paid-up equity capital and free reserves of the Transferee Company.
14. In view of the above said clarifications" the observations made by the Regional Director no longer survive.
15. Further the Regional Director has also observed that in terms of section 77A (4) of the Companies'Act every buy-back shall be cornpleted within twelve months from the date of passing the special resolution (or a resolution passed by the Board) and the Transferee Company has not filed e-form-4C in this regard so far.
16. In view of the above said observation, it is hereby stated by the Transferee Company that due to oversight it has not filed e-form-4C and the Transferee Company has now filed it on 07.9.2012.
17. I have perused the observations of the Regional Director and the reply filed thereto by the Petitioner Company and the Transferee Company. The observations made by the Regional Director relate to procedural compliances under company law and pertain to the Transferee Company r.vhich shall not be liquidated pursuant to the proposed amalgamation. The said observations do not have any C.P.No.275120L[2] Page8ofll ]. \o s financial implications upon the Transferee Cornpany and the Petitioner companies and neither have any 'bearing upon the arnalgamation proposed in the scheme. Further the Transferee Company and the Petitioner companies have also undertaken to comply with all prescribed regulations under law applicable to them. In vier'v of the abovesaid, observation made by Regional Director no longer sulives.
18. No objection has been received to the Scheme fi'om any other party. Mr. Navin Chandra, authorized signatory of the Petitioner Companies, has filed an affidavit dated 6th September, 2012 conf-rrming that the Petitioner Companies have not received any objection pursuant to citations published in the newspapers.
19. ln view of the approval accorded by the Shareholders and Creditors of the Petitioner Cornpanies. representation/reports filed by the Regional Director and the Official Licluidator, and no objections received to the proposed Scheme, there appears to be no impedirnent to grant of sanction to the Scherne. Consequently, sanction is hereby granted to the Scheme under Sections 391 and 394 of the Cornpanies Act, 1956. The Petitioners i.e. Transferor Company I and Transferor Cornpany 2 r.vill be dissolved without going through the rvinding up process ani C.P.No.27512012 Pa-ee9ofll -i. ) \\ OI amalgamated with the Transferee Company. The Petitioner Companies rvill comply with the statutory requirements irr accordance with law. Certified copy of the order will be filed with the Registrar of Companies within 30 days frorn the date of receipt of the same. In terms of the provisions of Sections 391 and 394 of the Companies Act, 7956, and in terms of the Scheme, the Petitioner Companies and the property, rights and powers concerning the same will 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 cluties pertaining to the Petitioner Companies will be transferred to the Transferee Company rvithout any further act or deed. It is, however, clarified that this order will not be construed as an order granting exenrption frorn payment of stamp duty or taxes or any other charges, if payable in accordance with any iaw; or permission/compliance with any other department which may be specifically required under any law.
20. Learned Counsel for the Petitioner Companies states that Petitioner Cornpanies r,vould voluntarily deposit a total sum C.P.No.27512012 Pagel0ofll the of \1/ Rs. 1,00,000/- (one lakh only) in the Common Pool fund of the Official Liquidator within three weeks from today. The statement is accepte{.
21. The Petition is allor.ved in the above terms. Order dasti.