TMI Blog2012 (12) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... amalgamation 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 - Petitioner Companies would voluntarily deposit a sum of Rs. One lac in the Common Pool fund of the Official Liquidator within three weeks from today - Petition is allowed. - COMPANY PETITION NO. 250 OF 2012 - - - Dated:- 7-11-2012 - MS. INDERMEET KAUR J. Through Mr. Mukesh Sukhija, Advocate for the Petitioners Mr. K.S. Pradhan, Dy. ROC for the Regional Director. Mr.Rajiv Bahl, Advocate for the Official Liquidator. INDERMEET KAUR, J. (Oral) 1. This joint Petition has been filed under sections 391(2) 394 of the Companies Act, 1956 by the Petitioner Transferor Companies and Transferee Company seeking sanction of the Scheme of Amalgamation of M/s ABHINEET PESTICIDES PRIVATE LIMITED (Transferor Company No. 1); CRAFTSILVER JEWELS PRIVATE LIMITED (Transferor Company No. 2); with FERN HEALTHCARE PRIVATE LIMITED (Transferee Company). 2. The registered offices of the Petitioner Transferor Companies and Transferee Company are situated at New Delhi, within the jurisdiction of this Court. 3. Detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi Edition) and Nav Bharat Times (Hindi, Delhi Edition). Affidavit of Service and Publication has 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 July 18, 2012. Copies of the newspaper cuttings, in original, containing the publications have been filed along with the Affidavit of Service. 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 17.8.2012 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 Companies No, 1 to 2 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. Rakesh Chandra, Learned Regional Director, Northern Region, Ministry of Corporate Affairs has filed his Affidavit dated A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Deponent further craves leave to submit that the Registrar of Companies, Delhi has also reported that the Transferor Company No. 2 viz. M/s Craftsilver Jewels Private Limited has not filed e-Form 32 regarding change in designation of Shri Anuj Chowdhary and Shri Hiranand Jethani as director of the company as they were regularised in the AGM held on 29.09.2008. 10. That the Deponent further craves leave to submit that the Registrar of Companies, Delhi has further reported that the Transferee Company viz. M/s Fern Healthcare Private Limited has not appointed whole time Company Secretary with effect from 10.11.2008 to 31.03.2012. Thus there is a violation of the Provisions of Section 383-A of the Act. 12. That Mr. Awanish K. Dwivedi Mr. Ashutosh Kumar Mr. Alok Kumar Tripathi, the respective Authorised Signatories of the Transferor Company No. 1, 2 the Transferee Company had given their respective affidavits dated 26/09/2012, giving their reply to the above observations, raised by the Ld. Regional Director. The reply is as follows: (i) The Board of Directors of the Transferor Companies i.e. M/s Abhineet Pesticides Private Limited and M/s Craftsilver Jewels Private Limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-Form 5 regarding conversion of Cumulative Redeemable Preference Shares into Equity Shares of Rs. 10/- each on 20th September, 2012Therefore, the provisions of section 94 read with section 95 of the Companies Act, 1956 has been duly complied with. (vi) In reply to para 9 it is submitted that the Transferor Company No. 2 was of the view that the Form 32 for change in designation of the Director is not required to be filed, since the said objection was raised by the Ld. RD, the Transferor Company no. 2 has vide SRN- B57738650 filed e-Form 32 regarding change in designation of Shri Anuj Chowdhary and Shri Hiranand Jethani on 17/09/2012, thereby, complying the provisions of Section 260 read with Section 303 of the Companies Act, 1956. (vii) In reply to para 10 it is submitted that the Transferee Company was not able to appoint the Company Secretary despite having the requisite capital. However, the Transferee Company has made all reasonable efforts to comply with the provisions of sub-section (1) of section 383A, however, the Transferee Company could not locate a suitable candidate for the said post. Further, the Transferee Company has appointed whole-time Company Secretary w.e.f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 giving the further reply to the observations, raised by the Ld. Regional Director. The reply is as follows: a. The Transferor Company No. 1 and Transferor Company No. 2 has received a sum of Rs. 150 Lacs and Rs. 130 Lacs respectively as share application money from M/s Fern Healthcare Private Limited (i.e. the Transferee Company). The share application money was utilized by the Transferor Companies to pay off its unsecured loan standing in the Balance Sheet as at 31.03.2010. b. As the sum of Rs. 150 Lacs and 130 Lacs received by the Transferor Company No. 1 and Transferor Company No. 2 respectively as the share application money and no allotment has been made till March 31, 2011, accordingly, the same is reflected in the Balance Sheet of the Transferor Companies as Share Application Money. The certified copy of the Balance Sheet of Transferor Company No. 1 Transferor Company No. 2 are already on record at page no 98 to page no 111 of and page no 182 to page no 195 of Ist Motion Application. c. It is pertinent to mention here that the aforesaid Share Application Money received by the Respective Transferor Companies have been received only from Transferee Company. It is how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e capital. However, the Transferee Company has made all reasonable efforts to comply with the provisions of sub-section (1) of section 383A, however, the Transferee Company was not able to find a suitable candidate for the said post. Further, the Transferee Company has appointed whole-time Company Secretary w.e.f. 01/04/2012. The Transferee Company has also moved an application for composition of offence under section 383A of the Act. h. Further para 5.2 of the Scheme of Amalgmation provides as follows: LEGAL PROCEEDINGS If any suit, appeal or other proceeding of whatever nature by or against the Transferor Companies is pending, the same shall not abate or be discontinued or in any way be prejudicially affected by reason of or by anything contained in this Scheme, but the said suit, appeal or other legal proceedings may be continued, prosecuted and enforced by or against the Transferee Company, as the case may be, in the same manner and to the same extent as it would or might have been continued, prosecuted and enforced by or against the Transferor Companies as if this Scheme had not been made. 15. No objection has been received to the Scheme of Amalgamation from any other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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