Full Text
CO.PET. 146/2011
IN THE MATTER OF DRSK MANAGEMENT
SERVICES PRIVATE LIMITED ..... Petitioner
Mr. Rohan Dheman, Advocate for petitioner.
Mr. Kanwal Chaudhary, Advocate for
Official Liquidator.
Mr. Atma Sah, Assistant Registrar of
Companies for Regional Director, Northern Region.
HON'BLE MR. JUSTICE MANMOHAN
14.10.2011
This second motion Petition has been filed under Sections 391-394 of the Companies Act, 1956 (for short 'Act') seeking sanction and approval to the Scheme of Amalgamation (for short 'Scheme') of DRSK
MANAGEMENT SERVICES PRIVATE LIMITED (hereinafter referred to as 'Transferor Company') with MAIDNDRA SONA LIMITED (hereinafter referred to as 'Transferee Company'). The Scheme has been enclosed as
Annexure 'A' to the present Petition.
Co. Pet. 146 of2011 Page 1 of8
2011:DHC:9104
ORDER
2. The Scheme envisages the transfer and vesting of the entire undertaking and ousiness of the Transferor Company in the Transferee Company pursuant to the provisions of Sections 391-394 of the Act and the consequent dissolution without winding up ofthe Transferor Company. ~ 3. 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 in the State of Maharashtra, within the jurisdiction ofthe High Court of Judicature at Bombay.
4. The Transferor Company was incorporated on 13th July, 2005 under the provisions ofthe Act.
5. The authorized share capital of the Transferor Company is Rs.2,00,00,000/- divided into 20,00,000 equity shares of Rs. 10/- each. The issued, subscribed and paid up share capital of the Transferee Company is Rs. 98,61,060/- divided into 9,86,106 equity shares ofRs. 10/- each.
6. Copies of the Memorandum and Articles of Association of the Transferor Company and the Transferee Companies have been filed and are annexed as Annexure 'B' and Annexure 'E' respectively with the Company Petition. The latest available audited accounts ofthe Transferor Company as Co. Pet. 146 of2011 Page 2 of[8] on 31st March, 2010 and as on 31st May, 2010 have been filed and are annexed as Annexure 'C' and Annexure 'D' with the Petition.
7. The latest available audited accounts ofthe Transferee Company as on 31st March, 2010 and the provisional accounts as on 31st May, 2010 have "'·,. also been enclosed as Annexure 'F' and Annexure 'G' with Petition.
8. The salient features of the Scheme have been detailed in the Petition. It is submitted that the Scheme between the Transferor Company and Transferee Company provides for the transfer and vesting of the entire undertaking and business of the Transferor Company in the Transferee Company and the consequent dissolution without winding up of the Transferor Company. The Board of Directors of the Transferor and Transferee Companies have at their respective meetings held on 21st June, 2010 and 2nd August, 2010 approved the Scheme.
10. In terms of the Scheme, upon the Scheme becoming effective, in terms of the Share Exchange Ratio, a total number of 14,35,000 equity shares ofthe face value ofRs 10/- each ofthe Transferee Company shall be Co. Pet. 146 of2011 Page 3 of[8] ·-r!J issued to the shareholders ofthe Transferor Company.
11. It has been submitted that no proceeding under Sections 235 to 251 of the Act is pending against the Petitioner Company.
12. The Transferor Company had earlier filed Company Application (Main) No. 40 of 2011 seeking directions of this Court for dispensation of meetings. Vide order dated 25th February, 2011, this Court allowed the Application and dispensed with the requirement of convening meetings of Equity Shareholders of the Transferor Company. The Transferor Company had no Secured or Un-secured Creditors.
13. The Petitioner Company has thereafter filed the present Petition seeking sanction ofthe Scheme. Vide order dated 20th April, 2011, notice in the Petition was directed to be issued to the Regional Director, Northern Region and the Official Liquidator. Citations were also directed to be published in 'Times of India' (English edition) and 'Jansatta' (Hindi edition). Affidavit of Service and Publication has been filed by the Petitioner showing compliance regarding service of the Petition on the Regional Director, Northern Region and the Official Liquidator, and also regarding publication of citations in the aforesaid newspapers on 04th July, Co. Pet. 146 of2011 Page 4 of[8] ~---------~ - - - - - - - - - - - -----~-------
2011. Copies of the newspapers' cuttings, in original, containing the publications have been filed along with the Affidavit of Service.
14. Pursuant to the notice issued, the Official Liquidator sought information from the Petitioner Company. Based on the information <Q received, the Official Liquidator has filed his report dated 26th October, 2011, wherein he has 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 does not appear to have been conducted in a manner prejudicial to the interest of its members, creditors or to public interest.
15. In response to the notice issued in the Petition, Mr. B. K. Bansal, Regional Director, Northern Region, Ministry of Corporate Affairs has filed his Affidavit dated 1ih August, 2011. Relying on Clause 3.2(v) of Part-III of the Scheme, he has stated that all the employees of the Transferor Company shall become the employees of the Transferee Company without any break or interruption in their services upon sanctioning of the Scheme by the Court. Co. Pet. 146 of2011 Page 5 of[8]
16. Mr. Anirudh Das, learned counsel for the Petitioner submits that the 1 Transferee Company had filed Company Scheme Petition No. 299 of 2011 before the High Court of Judicature at Bombay for sanction of the Scheme. The High Court of Judicature at Bombay by judgment dated 20th August, Q 2011 sanctioned the Scheme. A copy of the judgment dated 20th August, 2011 has been placed on record.
17. It is submitted in Para 7 ofthe affidavit dated lOth October, 2011 filed by Mr. Rajesh Kumar Gupta, an authorised signatory of Petitioner Company that in Clause 4.2.2. (d) of the Scheme, due to an inadvertent typographical error, the words 'Transferor Company and Transferee Company' wherever appearing ought to be read as 'Transferee Company and Transferor Company' respectively. The said error was also brought to the notice ofthe J High Court of Judicature at Bombay and the correction to this effect has been allowed by the High Court of Judicature at Bombay in Para 13 of the judgment dated 20th August, 2011. A copy of the Scheme incorporating the above change in Clause 4.2.[2] (d) has been placed on record as Annexure 'D' with the Affidavit dated lOth October, 2011. Co. Pet. 146 of201J Page 6 of[8]
18. The said correction is allowed and the Scheme (Annexure 'D' to the Affidavit dated lOth October, 2011) is taken on record and shall form part of the drawn up order. o 19. Even today, during the course of hearing, Mr. Kanwal Chaudhary, <::1 learned counsel for Official Liquidator and Mr. Atma Sah, Assistant state that they have no objection to the present Scheme being sanctioned.
20. In view ofthe approval accorded by the Shareholders and Creditors of the Petitioner Company; affidavit/report filed by the Regional Director, Northern Region and the Official Liquidator, attached with this Court to the proposed Scheme, there appears to be no impediment to the grant of sanction J_ to the Scheme. Consequently, sanction is hereby granted to the Scheme under Sections 391 and 394 ofthe Act. The Petitioner Company will comply with the statutory requirements in ·accordance with law. Certified copy ofthe 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 Act, all the properties, rights and powers of the Transferor Company be transferred to and vest in the Transferee Company without any Co. Pet. 146 oj2011 Page 7 oj[8] further act or deed. Similarly, 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. 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.
21. Mr. Anirudh Das, learned counsel states that the Petitioner Company would voluntarily deposit a sum of~ 1,00,000/- with the Common Pool fund ofthe Official Liquidator within three weeks from today. The said statement is accepted.
22. Any person shall be at liberty to apply to the Court for directions/ clarifications as permitted by law.
23. The Petition is allowed in the above terms. Order dasti.