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TMI Blog2017 (1) TMI 1302X X X X Extracts X X X X X X X X Extracts X X X X ..... essary jurisdiction to adjudicate the present petition. 4. The Demerged Company was originally incorporated under the provisions of the Act, on 25.03.2009, with the Registrar of Companies, N.C.T. of Delhi & Haryana at New Delhi, under the name and style of 'Modi Omega Pharma (India) Pvt. Ltd.'. Thereafter, the name of the Demerged Company was changed to its present name and fresh certificate of incorporation, dated 13.04.2015, was issued by the Registrar of Companies, N.C.T. of Delhi & Haryana at New Delhi. 5. The Resulting Company was incorporated under the provisions of the Act, on 31.10.1990, with the Registrar of Companies, N.C.T. of Delhi & Haryana at New Delhi. 6. The authorized share capital of the Demerged Company, as on 31.12.2014, is Rs. 1,00,00,000/- divided into 10,00,000 equity shares of Rs. 10/- each. The issued, subscribed and paid-up share capital of the Demerged Company, as on 31.12.2014, is Rs. 95,00,000/- divided into 9,50,000 equity shares of Rs. 10/- each. 7. The authorized share capital of the Resulting Company, as on 31.03.2015, is Rs. 1,00,00,000/- divided into 10,00,000 equity shares of Rs. 10/- each. The issued, subscribed and paid-up share capital of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rresponding sections of the Companies Act, 2013), as on the date of filing of the present petition. 12. The Board of Directors of the Petitioner Companies in their separate meetings held on 21.10.2015, have approved the proposed scheme. Copies of the resolutions passed at the Board of Directors meeting of the Petitioner Companies have been placed on record. 13. To recapitulate, the Petitioner Companies had earlier filed an application, being Company Application (M) no.19 of 2016 seeking directions of this court to, dispense with the requirement of convening the meetings of the shareholders of the Demerged Company and the secured creditors and shareholders of the Resulting Company; and to convene separate meetings of the unsecured creditors (except the statutory and other dues payable) of the Demerged Company and the Resulting Company. 14. This Court, vide order dated 05.02.2016 dispensed with the requirement of convening the meetings of the shareholders of the Demerged Company and the Resulting Company; and secured creditors of the Resulting Company. There were no secured creditors of the Demerged Company. Further, this Court vide said order dated 05.02.2016 directed for conveni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "6. Transfer of Demerged Undertaking: 6.1. Upon the Effective Date, Demerged Undertaking, comprising of all assets and liabilities of whatsoever nature and wherever situated. shall, under the provisions of Section 391 read with Section 394 and all other applicable provisions, if any, of the Act, including any statutory re-enactments thereof, without any further act or deed, be transferred to and vested in and/or be deemed to be transferred to and vested in the Resulting Company as a going concern so as to become as and from the Appointed Date the assets and liabilities of the Resulting Company and to vest in the Resulting Company all the rights, title, interest or obligations of Demerged Undertaking therein. 6.2. Without prejudice to the generality of the foregoing, with effect from the Appointed Date: 6.2.1. Any and all movable assets including cash in hand or incorporeal property, if any, of Demerged Undertaking, capable of passing by manual delivery or by endorsement and delivery, shall be so delivered or endorsed and delivered, by actual or constructive delivery, as the case may be, to Resulting Company without any further act, instrument or deed , and shall upon such tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scharged and there shall be no liability! obligation in that behalf. 6.5. For the avoidance of doubt and without prejudice to the generality of the foregoing, it is clarified that in accordance with the provisions of relevant laws, consents, permissions, licenses, registrations, certificates, authorities, powers of attorneys given by. issued to or executed in favour of Demerged Undertaking, and the rights and benefits under the same and all other interests of the Demerged Undertaking, be without any further act or deed, be transferred to and vested in the Resulting Company. (Emphasis supplied)" 18. A bare reading of the above-extracted clause of the proposed scheme makes it evident that all the debts, liabilities, contingent liabilities, duties and obligations of the Demerged Undertaking (as defined in the proposed scheme) of the Demerged Company shall stand transferred to the Resulting Company. Therefore, all the liabilities of the said Demerged Undertaking of the Demerged Company, including towards provisions made for LTA, gratuity and leave encashment, shall stand transferred to the Resulting Company and shall continue to be enforceable against the Resulting Company, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct on post demerger Balance Sheet may be clarified. (iii) It has been further observed that the Demerged Company by way of the present Scheme of Demerger has proposed payment of an aggregate cash consideration of Rs. 1,00,000/- for cancellation of its 900000 equity shares held by the Resulting Company without disclosing the justification to arriving at such cash consideration of Rs. 1,00,000/- ." 21. In response to the aforesaid observations made by the Regional Director, the Resulting Company has filed a reply affidavit dated 26.10.2016 stating as follows: "5. That with respect to the aforesaid observations of the Learned RD, we wish to make the following respectful submissions: a) The Demerged Company - Modi-Mundipharma Healthcare Pvt. Ltd. (MMHPL) was initially started a Joint Venture between the Resulting Company - Modi-Mundipharma Pvt. Ltd. (MMPL) and Omega Group. Due to various reasons, the Demerged Company suffered substantial losses. As on 31st December, 2014, the Demerged Company had accumulated losses of Rs. 12,55,57,233 as against a total paid up share capital of Rs. 95,00,000. b) Subsequently, Omega Group exited the Joint Venture by divesting its entire stake in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been received to the proposed scheme from any other party. The Resulting Company, vide affidavits dated 21.09.2016 and 26.10.2016, has submitted that neither the Resulting Company nor the Demerged Company has received any objection to the proposed scheme till the date of filing of the respective affidavits. 24. Considering the approval accorded by the shareholders and creditors of the Petitioner Companies to the proposed scheme; and the circumstance that the objections/observations raised by the Regional Director having been satisfied, by way of said affidavit dated 04.10.2016, there appears to be no impediment to the grant of sanction to the proposed scheme. Consequently, sanction is hereby granted to the proposed scheme. The Petitioner Companies will comply with the statutory requirements in accordance with law. Upon the sanction to the proposed scheme being effective from the appointed date of the proposed scheme, i.e. 1st January, 2015, the Demerged Undertaking (as defined in the proposed scheme) of the Demerged Company shall stand merged in the Resulting Company. 25. In any event, notwithstanding what has been stated on behalf of the Petitioner Companies hereinabove, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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