BSBK Engineers Pvt. Limited v. BSBK Enviro Systems Limited

1. This joint petition has been filed under Sections 391 to 394 of the Companies Act, 1956 (for short 'Act') by Transferor Company No 1, Transferor Company No 2 and Transferee Company seeking sanction of the Scheme of Amalgamation (for short 'Scheme') of MIs. BSBK Engineers Private Limited (Transferor. Company No. 1) and MIs.

BSBK - AKG (India) Limited (Transferor Company No. 2) with M/s. BSBK Enviro Systems Limited (Transferee Company). Co. Pet. 4412011 / 2011:DHC:7094

2. The registered offices of the Transferor Companies and Transferee Company are situated at New Delhi, within the jurisdiction of this Court.

3. Details with regard to the date of incorporation of Transferor Companies and Transferee Company, their authorised, 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 31 March, 2010 of the Transferor Companies and Transferee Company have also been enclosed with the petition. Copies of the Resolutions passed by the Board of Directors of the Petitioner Companies approving the Scheme have also been placed on record. It has been submitted that no proceedings under Sections 235 to 251 of the Act is pending against either of the Petitioner Companies. So far as the share exchange ratio for amalgamation is concerned, the Scheme provides that, upon the Scheme finally coming into effect, the Transferee Company shall issue shares in the following manner: - Co. Pet. 4412011. Page 2 of[8] - 53 Equity Shares of Rs 10/- each, credited as fully paidup, of the Transferee Company for every 100 Equity Shares of Rs 10/- each held in the Transferor Company - 15 Equity Shares of Rs 10/- each, credited as fully paidup, of the Transferee Company for every 200 Equity Shares of Rs 10/- each held in the Transferor Company The Petitioner Companies had earlier filed CA (M) No. 12 of 2011 seeking directions of this Court for dispensation of meetings. Vide order dated 19th January, 2011 this Court allowed aforesaid Application and dispensed with the requirement of convening meetings of shareholders and creditors of the Transferor Company No. 1, shareholders and unsecured creditors of Transferor Company No. 2 and shareholders of Transferee Company. Transferor Company No. 2 does not have any secured creditors and Transferee Company does not have any creditors. The Transferor Companies and the Transferee Company have thereafter filed the present petition seeking sanction of the Scheme. V Vide order dated 31St January, 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 'Statesman' (English, Delhi Edition) and 'Jansatta' (Hindi, Delhi Edition). Affidavit of Service and Publication have been filed by the Petitioners 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 1 June, 2011. Copies of the newspaper cuttings, in original, containi the publications have been filed along with the Affidavit of Service. Pursuant to the notices issued, the Official Liquidator some information from the Petitioner Companies. Based on th& information received, the Official Liquidator has filed his report dated 1 3rd May, 2011 wherein he has stated that he has not received any complaint against the proposed Scheme from any person(s)/party(ies) interested in the Scheme in any manner and that the affairs of the; Transferor Company Nos. 1 and 2 do not appear to have been conducted in a manner prejudicial to the interest of its members or to public interest. 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 7th April, 2011. Relying on Clause 8.[1] of the Scheme, he has stated that, upon sanction of the Scheme of Amalgamation, all the employees of both the Transferor Companies shall become the employees of the Transferee Company without an break or interruption in their services upon sanctioning of the Scheme by this Court. In para No.4.[1] of the affidavit dated 71h April, 2011, Mr. B.K.Bansal has observed that "status of a company from Public Limited Company to Private Limited Company can be changed/altered only after following the procedure prescribed under the relevant provisions of the Companies Act, 1956." Further, in para No. 5.[1] & 6.[1] of the affidavit dated 7th April, 2011, he has observed that the Memorandum of Association and name of a company can be, changed only after following the procedure prescribed under the relevant provisions of the Act. In reply to aforesaid observation, a rejoinder affidavit dated 13th July, 2011 has been filed on behalf of Transferee Company by Mr. Ajay Kumar, Director and authorised signatory of Transferee I Company. It is submitted that approval of Scheme in terms of Sections 391-394 of the Act is a 'Single Window Clearance' and no further act on the part of Company is required to be done after the approval of the Scheme, for giving effect to conversion of public company to private company, alteration in the Memorandum of Association of the Company and change in the name of the company. Further, the proposed Scheme has been approved by all the shareholders of the Petitioner Company No 3 / Transferee Company. The Transferee Company has no secured and unsecured creditors. Further, the Petitioner Company No 3 has undertaken to file all the forms in respect of conversion into a private company, alteration of memorandum of association and change of name with the Registrar of Companies as required under the relevant provisions of the Act. In view of the aforesaid, objections raised by the Regional Director no longer survive. No objection has been received to the Scheme of Amalgamation from any other party. Authorized signatories of the Petitioner Companies have filed their affidavit dated 15th July, 2011 confirming that neither the Petitioner Companies nor their Legal Counsel has received any objection pursuant to citations published in the newspapers. Even today, during the course of, hearing both Mr. K.S. Pradhan, Deputy Registrar of Companies and Mr. Rajiv Bahl, learned counsel for Official Liquidator state that they have no objection to the present petition being allowed. In view of the approval accorded by the shareholders and creditors of the Petitioner Companies, representationlreports filed by the Regional Director, Northern Region and the Official Liquidator, attached with this Court to the proposed Scheme of Amalgamation, there appears to be no impediment to the grant of sanction to the Scheme of Amalgamation. Consequently, sanction is hereby granted to the Scheme of Amalgamation under Sections 391 and 394 of the Companies Act, 1956. The Petitioner Companies will comply with the statutory requirements in accordance with law. Certified copy of the order be filed with the Registrar of Companies within 30 days from the date of receipt of the same. The Transferor Companies shall be dissolved without following the procedure of winding up. In terms of the provisions of Sections 391 and 394 of the Companies Act, 1956, and in terms of the Scheme, the whole or part of the undertaking, the Co. Pet. 4412011 Page 7of[8] property, rights and powers of the Transferor Companies 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 Companies 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 taxes or any other charges, if payable in accordance with any law; or permissionlcompliance with any other requirement which may be specifically required under any law. Learned Counsel for the Petitioner Companies states that the Petitioner Companies would voluntarily deposit a sum of T 1,00,000/in the Common Pool fund of the Official Liquidator within three weeks from today. The statement is accepted. The Petition is allowed in the above terms. t<51 Order dasti. %11 1 k'--1 MANMOHAN,J JULY 189 2011 rn