1. The present petitions are filed under the provision of Sections 391 to 394 of The Companies Act, 1956, seeking the sanction of this Court to the Scheme of Amalgamation of Rishi Infotech Private Limited (1st Transferor Company) and Advance Fluid Controls Private Limited (2nd Transferor Company) with Rishabh Software Private Limited (Transferee Company).
2. Mr. Bharat T Rao, learned advocate for the petitioners, has submitted that Rishabh Software Private Limited, the Transferee Company in the Scheme of Arrangement in nature of Amalgamation, had earlier filed Company Application No. 252 of 2015, seeking an order of dispensation of the meeting of the Equity Shareholders, in view of the written consent given by them to the proposed Scheme of Amalgamation. The Court noted that the applicant, being the Transferee Company, the meeting of the creditors was not required to be held. By an order dated 13.08.2015, this Court was pleased to allow the said application and ordered dispensation of the meetings of the Equity Share Holders.
3. The petitioner of Company Petition No. 338 of 2015 i.e. Rishi Infotech Private Limited, had filed Company Application No. 254 of 2015, for requisite directions for dispensing with the convening and holding of the meetings of the Equity Shareholders, Secured Creditors and Unsecured Creditors of the petitioner Company. This Court, by its order dated 13.08.2015, passed in Company Application No. 254 of 2015, had dispensed with the requirement of holding the meeting of the Equity Shareholders, in view of the written consent of all the Equity Shareholders and the majority of the Secured, as well as the Unsecured Creditors of the Company.
4. The petitioner of Company Petition No. 337 of 2015 i.e. Advance Fluid Controls Private Limited, had filed Company Application No. 253 of 2015, for seeking directions for dispensing with the convening and holding of the meetings of the Equity Shareholders, Secured Creditors and Unsecured Creditors of the petitioner Company. This Court, by its order dated 13.08.2015, passed in Company Application No. 253 of 2015 had dispensed with the requirement of holding the meeting of the Equity Shareholders, in view of the written consent of all the Equity Shareholders and the majority of the Secured, as well as the Unsecured Creditors of the Company.
5. The petitioners, thereafter, filed Company Petition No. 336 of 2015 to Company Petition No. 338 of 2015 respectively, seeking the sanction of the Scheme of Amalgamation. By a separate order dated 01.10.2015, this Court admitted all the petitions and directed the issuance of notice to the regional Director and the Official Liquidator. This Court further directed the Publication of the common notice of the hearing of the petitions in the local daily newspapers, both English and Vernacular editions.
6. Pursuant to the order dated 01.10.2015, the petitioner Companies have published the notice of the hearing of the petitions in the Gujarati daily newspaper "Sandesh" in the Ahmedabad edition and the English daily newspaper "Indian Express", in the Vadodara edition. On 15.10.2015, the authorized Director of the petitioner Companies has filed separate affidavits dated 05.01.2016, confirming the publication of the notice of the hearing of the petitions.
7. In response to the notice issued by the Court, the Regional Director has filed a common affidavit in reply dated 16.12.2015, making three observations. The first observation is with regard to Clause No. 10.1 of The Scheme of Amalgamation, to the effect that the Company will observe with the Accounting Standard-14 as prescribed by the Institute of Chartered Accountants of India as well as any reserve which arises on account of amalgamation shall be credited to the amalgamation reserve.
The second observation made by the Regional Director is that the Transferee Company has not convened the meeting of the preference shareholders of the Transferee Company and the petitioner Transferee Company has not provided an order directing dispensing with the meeting of the preference shareholders.
It was submitted by the Director on behalf of the Company, in the affidavit-in-rejoinder that the preference shareholders have already given their consent. However, through oversight, the Directors of the Company could not intimate the Chartered Accountant about the same. It is further submitted by the Director of the Company that they are the preference shareholders of the Transferee Company and their status is not being affected. Further, by filing the said affidavit the Director of the Transferee Company has tendered an unconditional apology for the oversight and placed on record the N.O.C of all the preference shareholders and prayed that, not much difference would be made, the Scheme may be sanctioned.
The third observation made by the Regional Director is with regard to the Income-tax Department. WITHOUT PREJUDICE to rights and contentions, petitioner Company submits that Transferee Company would undertake the compliance with the Income-tax Act and Rules framed thereunder, though no adverse remarks are received from the Income-tax Department.
8. The Official Liquidator has carried out the inspection of the Books of the Transferor Companies and submitted separate reports on 20.01.2016. The reports confirm that the affairs of the Transferor Companies are not conducted in a manner prejudicial to the interest of their members or the public at large. The Official Liquidator has recommended, by his report, for a direction to the Company to preserve their books of account, papers and records and not to dispose of the records without the prior permission of Central Government under Section 396 A of the Companies Act, 1956.
9. Having heard Mr. Bharat T Rao, learned advocate for the petitioner Companies and Mr. Kshitij Amin, learned Central Government Standing Counsel for Mr. Devang Vyas, learned Assistant Solicitor General of India for the Regional Director and upon perusal of the reports of the Official Liquidator and the Regional Director and after considering the Scheme of Amalgamation, together with the relevant documents on record, this Court finds it appropriate to grant sanction to the present Scheme of Amalgamation.
10. In view of the above, the Scheme of Amalgamation is sanctioned. It is, however, directed that the petitioners shall preserve their books of Accounts, papers and records and shall not dispose of the records without the prior permission of the Central Government under Section 396A of the Companies Act, 1956. The petitioner shall further ensure statutory compliance of all applicable laws. On the sanctioning of the Scheme of Amalgamation, the Petitioner Companies shall not be absolved of any of their statutory liabilities.
11. The petitioner Companies shall lodge a copy of this order, the schedule of immovable assets of the petitioner-companies as on the date of this order and the Scheme, duly authenticated by the Registrar, High Court of Gujarat, with the concerned Superintendent of Stamp Duty, if any, on the same within sixty (60) days from the date of the order.
12. The petitioner Companies are directed to file a copy of this order, along with a copy of the Scheme, with the concerned Registrar of Companies, electroni
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cally, along with requisite form, in addition to a physical copy, as per relevant provisions of the Act. 13. Filing and issuance of drawn up order is hereby dispensed with and all the authorities are to act on a copy of this order, along with the Scheme, duly authenticated by the Registrar, High Court of Gujarat. The Registrar, High Court of Gujarat shall issue the authenticated copy of this order along with the Scheme, as expeditiously as possible. 14. The costs of these petitions are determined at Rs. 7,500/- each, payable to Mr. Devang Vyas, Assistant Solicitor General of India, appearing for the Central Government and the Official Liquidator. Only the Transferor Companies shall pay the costs to the Official Liquidator. 15. The present petitions are disposed of, accordingly.