Full Text
CO.PET. 115/2011
BHAGYASHALI HOLDINGS LTD. ..... Petitioner
Through: Mr. Rajeev K. Goel, Advocate for Petitioner.
Mr. K.S. Pradhan, Deputy Registrar of Companies for Regional Director (NR).
HON'BLE MR. JUSTICE MANMOHAN
/o 02.08.2011
ORDER
1. This second motion joint Petition has been filed under Sections 391 & 394; 100 to 104 of the Companies Act, 1956 (for short 'Act') by the Petitioner Transferor Companies No. 1 to 5 and Transferee Company seeking sanction of the Scheme of Arrangement (for short 'Scheme') for (a) Amalgamation of Bhagyashali Holdings Ltd. with Cecil Webber Engineering Ltd.; and (b) De-merger of Business 2 of Monnet Finance Ltd, Co. Pet. 115/2011 Page 1 of[9] 2011:DHC:7123 Mili Marketing Pvt. Ltd., Gargi Traders Pvt. Ltd. and Nayan Traders Pvt. Ltd. into Cecil Webber Engineering Ltd.
2. The registered offices of the Petitioner Transferor Companies No. 1 to 5 and Transferee Company are situated at New. Delhi, within the jurisdiction ofthis Court.
3. Details with regard to the date of incorporation of Petitioner Companies, their authorized, issued, subscribed and paid up capital have been given in the Petition.
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 Petitioners Transferor and Transferee Companies have also been enclosed with the Petition.
5. Copies o~ the Resolutions passed by the Board of Directors of the Petitioner Companies approving the Scheme have also been placed on record. Co. Pet. 115/2011 Page 2 of[9]
6. Mr. Rajeev K. Gael, learned counsel for petitioner companies submits that no proceeding under Sections 235 to 251 of the Act is pending against the Petitioner Companies.
7. The Petitioner Companies had earlier filed Co.Appl. (M) 8 of 2011 seeking directions of this Court for dispensation/convening of meetings. Vide order dated 14th January, 2011, this Court allowed the Application and requirement of convening meetings of the Shareholders of the Transferor Companies No. 1, 3, 4 and 5; Un-secured Creditors of the Transferor Companies No. 1 to 5 and the Transferee Company was dispensed with. None of the Petitioner Companies had any Secured Creditors. This Court further directed for convening of separate meetings of Shareholders of the Transferor Company No. 2 and the Transferee Company under its supervision for the purpose of considering and, if thought fit, approving, with or without modification(s), the proposed Scheme.
8. As directed, separate meetings of Shareholders of the Transferor Company No. 2 and of the Transferee Company were duly convened and held on Saturday, 26th February, 2011 at 2.30 P.M. and 4.00 P.M. respectively at Conference Hall, Rajendra Bhawan, 210, Deen Dayal Co. Pet. 115/2011 Page 3 of[9] Upadhyay Marg, New Delhi 110 002 and the Scheme was approved and adopted, unanimously, in the said meetings held under the supervision of this Court without any modification. The respective Chairpersons have already reported the result of the aforesaid meetings to the Court by way of their Reports.
9. The Petitioner Transferor Companies No. 1 to 5 and the Transferee Company had thereafter filed the present Petition seeking sanction of the Scheme. Vide order dated gth March, 2011, notice of 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 'Statesman' (English, Delhi Edition) and 'Veer Arjun (Hindi, Delhi Edition). Affidavit of Service and Publication has been filed by the Petitioner Companies 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 newspaper on 13th May,
2011. Copies of the newspaper cuttings, in original, containing the publications have been filed along with the Affidavit of Service. Co. Pet. 115/2011 Page 4 of[9]
10. Pursuant to the notices issued, the Official Liquidator sought information from the Petitioner Companies. Based on the information received, the Official Liquidator has filed his report dated 19th May, 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 No. 1, which is a subject matter of dissolution, do not appear to have been conducted in a manner prejudicial to the interest of its members, creditors or to public interest.
11. 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/Report dated 18th May, 2011. Relying on the Scheme, he has stated that, upon sanction ofthe Scheme, all the employees ofthe Transferor Company No. 1 and all the employees ofthe Transferor Companies No. 2 to 5, in relation to the Demerged Business, shall become the employees of the Transferee Company without any break or interruption in their services upon sanctioning of the Scheme by the Court. The Regional Director drew the attention of this Court to the provisions of RBI Circular DNBS (PD) C.C. Co. Pet. 115/2011 Page 5 of[9] No. 63/02.02/2005-06 dated 24th January, 2006 which provides that the Non- Banking Finance Company (NBFC) needs to inform RBI within one month from the date of order of the Court about the merger or amalgamation/arrangement.
12. In response to the aforesaid observations of the Regional Director, the Petitioners in the Reply/Affidavit dated 30th July, 2011 of Mr. Sanjiv Soni, Director of the Petitioner Transferee Company, have submitted that requirement of the aforesaid RBI Circular was pointed out by the Legal Counsel of the Petitioner Gompanies himself in reply to the query raised by the Regional Director. The learned Counsel for the Petitioners submitted that the Petitioner Transferee Company is duty bound to comply with all the applicable provisions of different statutes including the provisions of the aforesaid Circular of the RBI. In the aforesaid affidavit, the Petitioner Transferee Company confirmed that it will inform the Reserve Bank ofIndia within one month from the date of order of this Court sanctioning the Scheme in compliance with the RBI Circular DNBS (PD) C.C. NO. 63/02.02/2005-06 dated 24-01-2006 and will take other necessary steps in Co. Pet. 115/2011 Page 6 of[9] this regard. Learned Counsel for the Petitioners reiterated the aforesaid undertaking today in the Court.
13. In view ofthe aforesaid clarifications given by the Petitioners, I am satisfied that the points raised by the Regional Director have been duly answered. '.
14. No objection has been received to the Scheme from any other party. Mr. Sanjiv Soni, Director of the Transferee Company, has filed an affidavit dated 30th July, 2011, confirming that neither the Petitioner Companies nor their Legal Counsel has received any objection pursuant to citations published in the newspapers.
15. 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.
16. In view of the approval accorded by the Shareholders and Creditors of the Petitioner Companies; representation/reports filed by the Regional Director, Northern Region and the Official Liquidator, attached wit~ this Co. Pet. 115/2011 Page 7 of[9] /11 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; 100 to 104 of the Act. The Petitioner Companies will comply with the statutory requirements in accordance with law. Certified copy of the formal order be filed with the In terms ofthe provisions of Sections 391 and 394; 100 to 104 ofthe Act, all the property, rights and powers of the Transferor Company No. 1 and Transferor Companies No. 2 to 5, in relation to the Demerged Business, be transferred to and vest in the Transferee Company without any further act or deed. Similarly, all the liabilities and duties of the Transferor Company NO. 1 and Transferor Companies No. 2 to 5, in relation to the Demerged Business, be transferred to the Transferee Company without 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 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. Co. Pet. 115/2011 Page 8 of[9] I J
17. The Petitioner Companies would voluntarily deposit a sum of Rs. 50,000/- with the Common Pool fund of the Official Liquidator within three weeks from today.
18. The Petition is allowed in the above terms. Order Dasti.