GIEX FOODS P. LTD. v. Fair Exports (India) Private Limited

1. This second motion petition has been filed under Sections 391(2) & 394 of the Companies Act, 1956, (for short 'Act') seeking sanction of the Scheme of Amalgamation (for short 'Scheme') of Giex Foods Private Limited (Transferor Company) with Fair Exports (India) Private Limited (Transferee Company). Co. Pet. 78 of20ll Page 1 of[6] 2011:DHC:7580

2. While the registered office of the Transferee Company is situated in the State of Maharashtra, i.e. within the jurisdiction of High Court of judicature of Bombay, the registered office of Transferor Company is situated at New Delhi, within the jurisdiction ofthis Court.

3. 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. CD 4. 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 Company has also been enclosed with the Petition.

5. Copies of the Resolutions passed by the Board of Directors of the Petitioner Company approving the Scheme have also been placed on record.

6. Mr. Mukesh Sukhija submits that no proceedings under Sections 235 to 251 ofthe Act are pending against the Petitioner Companies.

7. The Transferor Company being the wholly owned subsidiary of the Transferee Company, upon the Scheme finally coming into effect and in consideration of the transfer and vesting of all assets and liabilities of the Transferor Company to the Transferee Company in terms ofthe Scheme, the investment in the shares of the Transferor Company by the Transferee Co. Pet. 78 of2011 Page 2 oj[6] CD. Company shall stand cancelled and accordingly, no shares shall be issued or allotted to the shareholders ofthe Transferor Company.

8. The Transferor Company had earlier filed CA (M) 28 of 2011 seeking directions of this Court for dispensation/convening of meetings. Vide order dated 11th February, 2011, this Court allowed the Application and dispensed with the requirement of convening meetings of shareholders, secured and un-secured creditors ofthe Transferor Company.

9. The Transferor Company has thereafter filed the present petition seeking sanction of the Scheme. Vide order dated 08th February, 2011, notice in the petition was directed to be issued to the Regional Director, Northern Regional and the Official Liquidator. Citations were also directed to be published in 'The Statesman' (English, Delhi Edition) and 'Veer Arjun' (Hindi, Delhi edition). Affidavit of service and publication has been filed by the petitioners showing compliance regarding service of the petition 0 on the Regional Director, Northern Region and Official Liquidator and also regarding publication of citations in the aforesaid newspapers on 02nd April,

2011. Copies of the newspapers' cuttings, in original, containing the publications have been filed along with the affidavit of service. Co. Pet. 78 of2011 Page 3 of[6] t

10. Pursuant to the notices issued, Official Liquidator sought information from the petitioner companies. Based on the information received, the Official Liquidator has filed his report dated 16th May, 2011 wherein he has stated that he has not received any complaipt against the proposed Scheme from any person/party interested in the Scheme in any manner and that the affairs ofthe Transferor Company do not appear to have been conducted in a manner prejudicial to the interest of its members, creditors or to public CD interest.

11. In response to the notices issued in the petition, Regional Director, Northern Region, Ministry of Corporate Affairs has filed his Affidavit dated oih April, 2011. Relying on Clause 7 of the Scheme, the Regional Director has stated that, upon sanction of the Scheme by the Court, all the employees of Transferor Company shall become the employees of the Transferee Company without any break or interruption in their services

12. No objection has been received to the Scheme from any other party. Mr. Mukesh Sukhija, learned counsel for Petitioner Companies, has filed an affidavit dated 1ih August, 2011, confirming that neither the Petitioner Company nor he has received any objection pursuant to citati<:ms published in the newspapers. Co. Pet. 78 oj2011 Page 4 of[6]

13. Even today, during the course of hearing, Mr. Rajiv Bahl, learned counsel for Official Liquidator and Mr. K.S. Pradhan, Deputy Registrar of Companies for Regional Director (Northern Region) state that they have no objection to the present Scheme being sanctioned.

14. In view of the approval accorded by the Shareholders and Creditors of the Petitioner Company; representation/reports filed by the Regional CD Director, Northern Region, Ministry of Corporate Affairs and the Official Liquidator attached with this Court, to the proposed Scheme, there appears to be no impediment to the grant of sanction to the Scheme. Consequently, sanction is hereby granted to the Scheme under Sections 391 and 394 of the Act. The Petitioner Companies will comply with the statutory requirements in accordance with law. Certified copy of the order be filed with the (\) same. In terms of the provisions of Sections 391 and 394 of the Act, and in terms of the Scheme, the whole or part 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 Demerged Undertaking of the Transferor Company be transferred to the Transferee Company without Co. Pet. 78 oj2011 Page 5 of[6] I r---'""J--r,----r--r--m---..-.---r--r-J---,-.,---r-~--r--n-nr;-~--r"Ta""T""~---..-...,.......,.......,....,.,..cn-~ \ d any further act or deed. 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.

15. Further, since the jurisdiction of the Transferee Company is before the High Court of Judicature at Bombay and according to Mr. Sukhija, said ·iJ) · Transferee Company has already moved a petition over there, this order is subject to the sanction of the Scheme by the High Court of judicature at Bombay.