TMI Blog2016 (3) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... pany without any further act or deed. Upon the scheme coming into effect, the transferor company shall stand dissolved without having to follow the process of winding up. It is made clear, that this order will not be construed as an order granting exemption from : payment of stamp duty or, taxes or, other penalties/ charges, if any, payable, as per the relevant provisions of law or, from any applicable permissions that may have to be obtained or, even compliances that may have to be made, as per the mandate of law. - CO. PET. 669/2014 . - - - Dated:- 3-2-2016 - Rajiv Shakdher,J. For the Petitioner : Mr Karan Khanna, Adv. Through: Ms Aparna Mudiam, Asstt. ROC. Mr Rajiv Behl, Adv. ORDER Rajiv Shakdher, J 1. This is a second motion petition filed jointly by Beumer Technology India Private Limited (i.e. the transferor company /petitioner no.1) and Enexco Teknologies India Ltd. (i.e. the transferee company / petitioner no.2) under Section 391 and 394 of the Companies Act, 1956 (hereafter referred to as the 1956 Act) to seek sanction of the scheme of amalgamation (in short the scheme). 1.1 The transferor and transferee companies, as referred to above, will be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt, also noted, that the secured creditors of the petitioners had also given their consent/ NOC, and hence, there was no requirement to convene a meeting with respect to that class of persons / entities. The court, however, despite consent not given by the unsecured creditors of either of the petitioners, dispensed with the requirement of convening meetings, as prayed, having regard to the fact, that the interest of the creditors (i.e. unsecured) will not be adversely affected and rather would be placed in a better position, vis-a-vis their security post amalgamation. 8. The petitioners, thereafter, filed the instant petition (i.e. the second motion). Notice in this petition was issued on 31.10.2014. Notice was accepted on behalf of the Official Liquidator (OL) and the Regional Director (RD). Furthermore, citations were ordered to be published. 9. Pursuant thereto, reply/ representation has been filed by the RD. Citations were published in Delhi Editions of the following newspapers: Business Standard (English) and Business Standard (Hindi), on 02.12.2014. A document establishing publication of citation alongwith the newspaper extracts, was filed by the petitioners. 10. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the provisions of this scheme, the transferee company shall abide by the Accounting Standard-14 issued by the Institute of Chartered Accountants of India (ICAI). 10.5 In response to the concerns raised by the RD, the petitioners filed an affidavit dated 23.05.2015, wherein, it clearly averred that, the petitioners have already passed a BODs resolution of even date i.e. 18.09.2014, extending the date of the scheme to 01.04.2017 or such other date as per the order(s) passed by this court in connection with the petition. 10.6 Therefore, the perceived gap in the scheme has been filled with BODs resolution passed in accordance with clause 17.2 of the scheme. 10.7 The petitioners have also taken a stand in the aforementioned affidavit that the transferee company has furnished an undertaking dated 29.04.2015, to the RD, stating therein that subject to the approval and sanction of the scheme by this court, the transferee company shall adhere to and comply with the applicable RBI requirements, under the extant rules and regulations, as may be amended from time to time, if any, for and on behalf of the transferor company. 10.8 Furthermore, the petitioners clearly refute that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Value of ₹ 10 (Rupees ten only) each shall be issued to the shareholders of the transferor company for every 1 (one) share held by them in the transferor company. As per para 10.1.1 of the scheme: 1(one) Equity share of the face value of ₹ 10 each of transferee company with rights attached thereto as mentioned in the scheme, for every 9 (nine) Equity Shares of ₹ 10 each held in the transferor company... 11.2 Furthermore, the OL has averred that this court had vide order dated 08.09.2014 directed the petitioners to issue a specific notice to the secured creditors, who had not submitted their BODs resolution along with the no objection certificate; an aspect which even according to him was taken care of by the petitioners. 11.3 The OL has further stated that no complaint against the scheme has been received by him from any interested person or party. The OL has also averred in his report that on the basis of information supplied by the petitioners, it appears, the affairs of the transferor company have been conducted in a manner which could not be construed as being prejudicial to either the interest of their members or the public at large. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if there is any deficiency found or, any violation committed of any provisions of the RBI Act or any other statute, the sanction granted by this court to the scheme will not come in the way of any action being taken in accordance with law, against the concerned persons, directors and officials of the petitioners. 14. As indicated above, the OL has indicated, that no objections have been received by him, from any person and / or interested party qua the scheme. Furthermore, the OL has also indicated that the requirement of the second proviso of Section 394 (1) of the 1956 Act are met. 15. Thus, a perusal of the affidavit of the RD and the OL and the response of the petitioners would show, in nutshell, that the following concerns have been made: (i) With regard to extension of the scheme beyond 01.04.2013: As indicated above, the petitioners have passed a BOD resolution on 18.09.2014 extending the date of the scheme to 01.04.2017 or such as other date as this court may fix while sanctioning the scheme. (ii) In so far as registration of charge under Section 77 of the 2013 Act is concerned, the stand of the petitioners in their affidavit-in-rejoinder appears to be correct t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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