M.M. Kumar, CJ., (Retd.) President
1. This Petition filed by the Petitioner Companies above named is coming up for final disposal before us on 24.10.2017 for the purpose of the approval of the Scheme of Amalgamation, as contemplated between the companies and its shareholders by way of Amalgamation of the Petitioner Companies.
2. A perusal of the petition discloses that initially the application seeking the directions for dispensing with the meetings of Shareholders, Secured and Unsecured Creditors of the Petitioner Companies were filed before the Hon'ble High Court of Delhi in Company Application (M) 154/2016. The Hon'ble High Court of Delhi vide its order dated 13.01.2017 was pleased to dispense with the requirement of convening the meetings of the Shareholders, Unsecured Creditors and Secured Creditors of the Petitioner Companies due to either consents having been provided or on the grounds of their non-existence as the case may be.
3. Subsequent to the above order dated 13.01.2017, the Petitioner Companies preferred the instant Petition before the National Company Law Tribunal, which vide its order, directed the Petitioner Companies under Sections 230 to 232 of the Companies Act, 2013 read with relevant Rules in connection with the Scheme of Amalgamation, to issue Notice in the Second Motion petition to the Regional Director, Northern Region, Ministry of Corporate Affairs, Registrar of Companies, Income Tax Department, Official Liquidator and to such other Sectoral Regulatory Authorities who may govern the respective companies involved in the Scheme. The Petitioner Companies were also directed vide said order to carry out publication in English Daily 'Statesman' (Delhi edition) and Hindi Daily ‘Veer Arjun' (Delhi edition).
4. An affidavit dated 03.07.2017 was filed by Petitioner Companies stating that in compliance of second motion order the Companies have effected publication in English Daily 'Statesman' (Delhi edition) and Hindi Daily 'Veer Arjun' (Delhi edition) on 19.06.2017. It has been stated that the companies have not received any objections from any of the members, creditors or shareholders interested in the Scheme in any manner till the date of filing the affidavit.
5. Regional Director, Northern Region, Ministry of Corporate Affairs, New Delhi, after receiving the report from the Registrar of Companies has filed his report dated 01.09.2017. The Regional Director submits that the companies are regular in filing their statutory returns. No prosecution has been filed, no complaints are pending and no inspection or investigation has been conducted in respect of the petitioner companies. Hence, the Regional Director has no objections to the Scheme.
6. The Official Liquidator has filed a report dated 10.08.2017 wherein it has been stated that the Official Liquidator did not receive any complaint against the proposed Scheme from any person/party interested in the Scheme in any manner and that the affairs of the Petitioners companies do not appear to have been conducted in a manner prejudicial to the interest of its members or to public interest.
7. In view of the foregoing, upon considering the approval accorded by the members and creditors of the Petitioner Company to the proposed Scheme and the affidavits filed by the Regional Director, Northern Region, Ministry of Corporate Affairs and Official Liquidator whereby no objections have been raised to the proposed Scheme, there appears to be no reservation to grant sanction to the Scheme. However, the Companies shall remain bound by the undertaking filed by either of them. Consequently, sanction is hereby granted to the Scheme under section 230 to 232 of the Companies Act, 1956. The Petitioner shall however remain bound to comply with the statutory requirements in accordance with law.
8. Notwithstanding the above, if there is any deficiency found or, violation committed qua any enactment, statutory rule or regulation, the sanction granted by this court to the scheme will not come in the way of action being taken, albeit, in accordance with law, against the concerned persons, directors and officials of the petitioners.
9. While approving the Scheme as above, we further clarify that this order should not be construed as an order in any way granting exemption from payment of stamp duty, taxes or other charges, if any, and payment in accordance with law or in respect to any permission/ compliance with any other requirement which may be specifically required under any law.
10. THIS TRIBUNAL DO FURTHER ORDER:
That in terms of the Scheme:
a) That all the property, rights and powers of the Transferor Company be transferred without further act or deed to the Transferee Company and accordingly the same shall pursuant to section 232 of Act, be transferred to and vested in the Transferee Company for all intents and interest of the Transferor Companies therein but subject nevertheless to all charges now affecting the same; and
b) That all the liabilities of the Transferor Company be transferred without further act or deed to the Transferee Company and accordingly the same shall pursuant to section 232 of the Act, be transferred to and become the liabilities and duties of the Transferee Company; and
c) That all proceedings now pending by or against the Transferor Company be continued by or against the Transferee Company which shall include the liability to pay Income Tax, GST or any other tax, if any; and
d) That Petitioner Companies shall within thirty days of the date of the receipt of this order cause a certified copy of
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this order to be delivered to the Registrar of Companies for registration and the Transferor Company on such certified copy being so delivered shall deemed to be dissolved. The Registrar of Companies shall place all documents relating to the Transferor Companies and registered with him on file kept by him in relation to the Transferee Company and files relating to the Petitioner Companies shall be consolidated accordingly; e) That any person interested shall be at liberty to apply to the Tribunal in the above matter for any directions that may be necessary. The petition stands disposed of in the above terms.