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Vertex Customer Services India Versus Private Limited And Anr.

2014 (3) TMI 1106 - DELHI HIGH COURT

Scheme of amalagamation - Held that:- In view of the approval accorded by the Shareholders and Creditors of the Petitioner Companies, representation/reports filed by the Regional Director and the Official Liquidator, and no objections received to the proposed Scheme, there appears to be no impediment to grant of sanction to the Scheme. Consequently, sanction is hereby granted to the Scheme under Sections 391 and 394 of the Companies Act, 1956. The Petitioner Companies will comply with the statut .....

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ibhu Bakhru, J. Mr Abhishek Seth, Mr Abhixit Singh, Mr Rajeev Kumar and Mr Rahul Raj, Advocates for the Petitioners. Mr Atma Sah Asstt. Registrar of Companies appearing for Regional Director. Mr Rajiv Bahl Advocate for Official Liquidator ORDER 1. This is a second motion petition filed under Sections 391-394 of the Companies Act, 1956 (hereinafter referred to as the ?Act?) by Vertex Customer Services India Private limited (hereinafter referred to as Petitioner/Transferor Company) and Vertex Cust .....

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nsferee Company shall be issued and allotted to every shareholder [or its successor(s)]of the Transferor Company in lieu of every 27,512 fully paid equity shares of ₹ 10/- each with voting rights held by it in the Transferor Company?. 4. The Petitioner Companies had filed a CA(M) No.163/2013 seeking directions of this Court for dispensation of the requirement of convening meetings of Shareholders and Unsecured Creditors of the Petitioner Companies. By an order dated 29th November, 2013, th .....

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ons were also directed to be published in Business Standard (English, Delhi Edition) and Dainik Bhaskar (Hindi, Delhi Edition). An affidavit of service and publication has been filed showing compliance regarding service of the petition on the Regional Director, Northern Region, the Registrar of Companies and the Official Liquidator, and also regarding publication of citations in the aforesaid newspapers. Copies of the newspaper cuttings, in original, containing the publications have been filed a .....

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of its members or to public interest. The Official Liquidator has not raised any objection to the scheme of amalgamation. 7. The Official Liquidator further in Para 13 of his report has stated that it is pertinent to mention that the appointed date is 01.04.2011 and the Court may consider re-fixing of the appointed date as 01.04.2013 since the Audited Balance Sheet of all the petitioner companies as on 31.03.2013 are available. A similar observation has also been made on behalf of the Central Go .....

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r, Northern Region, Ministry of Corporate Affairs has filed his Affidavit dated 21st March, 2014. In Para 4, of the Affidavit the Regional Director has observed that 100% shares are held by the foreign Companies in both the Transferor and Transferee Companies. Further the Regional Director has stated that the Petitioner Transferee Company may be asked to give an undertaking with regard to all compliances from the Reserve Bank of India and under FEMA for transactions involving foreign bank/entiti .....

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rector no longer survives. 12. The Regional Director in Para 5, of the Affidavit has observed that the Appointed Date as per the Scheme is 01.04.2011, whereas the Companies have already prepared their Balance Sheet and Profit and Loss Account for the period ended 31.03.2013. The said Balance Sheets and other returns under the Companies Act, 1956 and other statutes have also been filed before the concerned Authorities. It is also pointed out that certain undertakings have been transferred by the .....

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have been available with the petitioner at the time when the first motion was filed. The scheme thus entails an amalgamation with retrospective effect beyond two years. He states that sanction of the present scheme would entail the petitioner to file revised returns before the Income Tax Authorities. The returns filed with the Registrar of Companies would also not reflect the correct position. The learned counsel for the petitioner states that no prejudice would be caused to any person on accou .....

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sed to any person, the sanctioning of a scheme would normally not be withheld. It is a common practice to fix the appointed date proximate to the date of the latest available audited balance sheet and as such schemes are usually with a retrospective date. However, there seems to be substance in the contention that a scheme effective from a retrospective date beyond a period of two years would not normally be considered, however, since in the present case, there is no prejudice caused to any pers .....

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liberty to examine all returns on merits including the returns pertaining to the past periods. 14. The Regional Director in Para 6, of the Affidavit has observed that Registrar of Companies, Delhi has reported that both the Petitioner Transferor and Transferee Companies have not filled their Annual Return and Balance Sheet as on 31.03.2013. Thus there is violation of the provisions of section159 and section 220 of the Companies Act, 1956. 15. In response to the aforesaid observation, it was subm .....

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onger survives. It is clarified that the ROC would be at liberty to initiate such action for the delay in filing as may be permissible in law. 17. No objection has been received to the Scheme from any other party. Mr. Mahesh Gupta, authorized signatory of the Petitioner Companies, has filed an affidavit dated 24th March, 2014 affirming that the Petitioner Companies have not received any objection pursuant to citations published in the newspapers. 18. In view of the approval accorded by the Share .....

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