Full Text
CO.PET. 174/2011
IN THE MATTER OF ARADHANA CONVENIENCE FOODS PVT.LTD.
Mr. K.S. Pradhan, Dy.ROC for RD (NR)
Mr. S.P. Singh, Inspector for OL
HON'BLE MR. JUSTICE MANMOHAN
06.09.2011
ORDER
1. This second motion petition has been filed under Sections 391(2) and 394 ofthe Companies Act, 1956 (in short 'Act') by the Transferor Company seeking sanction ofthe Scheme ofAmalgamation (in short 'Scheme') ofM/s Aradhana Convenience Foods Private Limited ('Transferor Company') with M/s PepsiCo India Holdings 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 in Gurgaon and it has been informed that the Transferee Company has filed a separate petition under the provisions ofthe Act before the Punjab and Haryana High Court seeking sanction of the Scheme.
3. Details with regard to the date of incorporation as well as authorized, issued, subscribed and paid up capital of the Transferor and Transferee Companies have been given in the present petition. -~ 2011:DHC:7624.l
4. Both the Transferor and Transferee companies are incorporated unde? the provisions ofthe Act.
5. Copies of the Memorandum and Articles of Association as well as the latest audited Annual Accounts for the year ended 31st March, 2010 of the Transferor and Transferee Companies have also been enclosed with the Petition.
6. Copies of the Resolutions passed by the Board of directors of the Transferor and Transferee Companies approving the Scheme have also been placed on record.
7. It has been submitted that no proceeding under Sections 235 to 251 ofthe Act is pending against the Petitioner Company.
8. The Scheme envisages that in consideration of the transfers thereunder, the equity shares held by the Transferee Company in the paid up equity share capital ofthe Transferor Company, shall be extinguished, as the same shall stand cancelled against the investment ofthe Transferee company in the Transferor Company, being wholly owned subsidiaries. Hence, no valuation of shares is necessary and accordingly, no valuation is required to be done.
9. The Petitioner company had earlier filed CA (M) Nos. 50 of 2011 seeking directions of this Court for dispensing of meetings of the shareholders and the unsecured creditors. Vide order dated March 09, 2011 this Court allowed the said Application and dispensed with the requirement of convening meetings of the Shareholders and Unsecured Creditors of the Transferor Company.
10. Petitioner Company has thereafter filed the present petition seeking sanction of the Scheme. Vide order dated April 08, 2011, notice in the petition was directed to be issued to the Regional Director, Northern Region and Official Liquidator. Citations were also directed to be published in 'Economic Times' (English edition) and 'Hindustan' (Hindi, Edition). Affidavit of service and publication has been filed by the Petitioner Company showing compliance regarding service of petition on the Regional Director, Northern Region and the Official Liquidator, and also regarding publication of citations in the aforesaid newspapers on 19th and 20th May,
2011. Copies of the newspapers' cuttings, in original, containing the publications have been filed along with the Affidavit of Service.
11. Today in Court, Mr. Chetan Chopra, learned counsel for the petitioner has handed over his personal affidavit. In the said affidavit, it has been stated that neither the counsel for the petitioner nor the petitioner itself has received any objection to the Scheme from any person in pursuance to the advertisements in 'Economic Times' (English edition) and 'Hindustan' (Hindi edition). The said affidavit is taken on record.
12. Pursuant to the notices issued, the Official Liquidator sought information from the Petitioner Company. Based on the information received, the Official Liquidator has filed his report on September 03, 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 do not appear to have been conducted in a manner prejudicial to the interest ofits members, creditors or to public interest.
13. In response to the notices issued in the petition, Mr. B.K. Bansal, Regional Director, Northern Region, Ministry of Corporate Affairs has filed his affidavit on 30th August, 2011. He called upon the Petitioner Company to furnish certain information regarding the Company. The Petitioner provided all requisite information to the Regional Director and upon being satisfied with the information supplied by the Petitioner Company, the Regional Director filed its affidavit before this Court, recording its no objection to the Scheme.
14. Even today, during the course of hearing, neither Mr. S.P. Singh, Inspector appearing for Official Liquidator nor Mr. K.S. Pradhan, Deputy any objection to the present Scheme.
15. Learned senior counsel for the Petitioner has further submitted that owing to a photocopying enor, one page of the Scheme filed before this Court has gone missing and as such, he seeks the permission ofthis Court to replace the same with another copy of the same. Upon the oral request of....,) learned senior counsel for the Petitioner and in the interest of justice, the same is taken on record and the same may be annexed along with the formal order required to be submitted before the Registrar of Companies.
16. In view of the approval accorded by the Shareholders and Creditors ofthe Petitioner Company, representation/affidavit filed by the Regional Director, Northern Region and the Official Liquidator attached to this Court to the proposed Scheme, there appears to be no impediment to grant of sanction to the Scheme. Consequently, sanction is hereby granted to the Scheme under Sections 391 and 394 of the· Act. The Petitioner Company will comply with the statutory requirements in accordance with law. Certified copy of this 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 and in terms of the Scheme, the whole of the undertaking, the property, rights and powers of the Transferor Company 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. 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 m accordance with any law, or permission/compliance with any other requirement which may be specifically required under any law. It is also made clear that the approval ofthe Scheme from this Court is subject to the approval of the Scheme from Punjab and Haryana High Court.
17. Learned senior counsel for the Petitioner states that the Petitioner Company would voluntarily deposit a sum of Rs. 1,00,000/- with the Common Pool fund of the Official Liquidator within three weeks from today. The said statement is accepted.
18. The Petition is allowed in the above-terms. Order dasti.
SEPTEMBER 06,2011 NG \\~ MANMOHAN,J