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2016 (6) TMI 219 - DELHI HIGH COURT

2016 (6) TMI 219 - DELHI HIGH COURT - TMI - Scheme of amalgamation - Held that:- In view of the approval accorded to the scheme by the shareholders and creditors (i.e secured and unsecured) of the petitioners and, given the fact, that the RD and the OL have not articulated any objections, to the scheme, in opinion, there appears to be no impediment in the grant of sanction to the scheme. Consequently, sanction is granted to the scheme in terms of Section 391 and 394 of the Act. The petitioners w .....

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l, Adv. JUDGEMENT RAJIV SHAKDHER, J 1. This is a second motion petition filed jointly by J.M. Infra Tech Private Limited (i.e. petitioner no.1/transferor company) and J.M. Housing Limited (i.e petitioner no.2 / transferee company), under Section 391 and 394 of the Companies Act, 1956 (hereafter referred to as the Act) for approval of the scheme of amalgamation (hereafter referred to as the scheme). 2. The transferor company and the transferee company, will hereafter be referred, to as the petiti .....

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d 01.012.2014 and 30.11.2014 of the transferor company and the transferee company respectively, whereby, the scheme has been approved, are filed with the petition. 7. The petitioners have averred that the amalgamation of the transferor company with transferee company would result in pooling of resources of the aforementioned entities to their common advantage, resulting in more productive utilization of the resources, costs and operational efficiencies. 8. In terms of clause 6.4 of the scheme, t .....

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cation (i.e. the first motion), being: CA(M) No.107/2015, whereby a prayer had been made, for dispensing with the requirement of convening the meetings of the equity shareholders, secured and unsecured creditors of the petitioners. 11. The court vide order dated 18.08.2015, having regard to the facts as mentioned in the table below, dispensed with the requirement of convening the meetings, as prayed. Number of Companies Equity Shareholders Consent given Secured creditors Consent given Unsecured .....

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blished. 13. Citations were published, on 10.02.2016, in Delhi Editions of the following newspapers: Business Standard (English) and Jansatta (Hindi). An affidavit dated 09.03.2016 demonstrating service of the petition on the RD and OL and establishing publication of citation along with the newspaper extracts, was filed by the petitioners. 13.1 Further, in the abovementioned affidavit it is averred that subsequent to the publication of the notice, the petitioners have not received any objection .....

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the scheme. 14.2. However, no response by the I.T. Department, on this matter, has apparently been received, till date. 15. The RD, though, received information from the ROC vide report dated 29.02.2016 which, inter alia, is indicative of the facts as follows: a) First, that there is a discrepancy as between what is stated in paragraph 18.1 and paragraph 34 of the scheme regarding the time limit prior to which sanctions and approvals qua the scheme had to be obtained; b) and second, the BOD reso .....

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eme. To be noted, in paragraph 18.1 of the scheme, prior to the correction, the validity period of the scheme ended on 31.03.2015. By virtue of the resolutions passed, by the BOD s of the petitioners on 29.02.2016, the said error was corrected and the validity period of the scheme was extended till 30.09.2016. This aspect has been noted by the RD in its own report dated 09.03.2016, placed before the court to which I have made a reference. 16.1 Therefore, having regard to the above, in my view, t .....

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feror company, according to the OL, do not fall foul of the provisions of the second proviso to Section 394(1) of the Act. 17.1 Thus, the OL, in effect, has conveyed that he has no objections to the scheme being sanctioned. 18. To be noted, the scheme in clause 14.1 provides that all the employees of the transferor company in service on the effective date shall become the employees of the transferee company on such date without any break and interruption in service and on the terms and condition .....

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nsferor company shall stand transferred to the transferee company without any further act or deed. 19.1 Furthermore, as per clause 13.1 of the scheme, the transferor company shall stand dissolved without being wound up. 20. Accordingly, in view of the approval accorded to the scheme by the shareholders and creditors (i.e secured and unsecured) of the petitioners and, given the fact, that the RD and the OL have not articulated any objections, to the scheme, in my opinion, there appears to be no i .....

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