2013 (2) TMI 815 - HC - Companies Law

Summary

Issues Involved:
1. Sanction of the Scheme of Arrangement u/s 391 and 394 of the Companies Act, 1956.
2. Compliance with statutory requirements and objections raised by the Regional Director (RD) and Official Liquidator (OL).

Summary:

Issue 1: Sanction of the Scheme of Arrangement u/s 391 and 394 of the Companies Act, 1956.

1. This second motion joint petition has been filed u/s 391 and 394 of the Companies Act, 1956 by twelve Transferor companies with BDR Builders and Developers Pvt. Ltd. (Transferee company) seeking sanction of the Scheme of Arrangement (Scheme) involving them. The Petitioner companies had earlier filed C.A. (M) No. 96 of 2012 seeking directions of this Court for dispensation of the meetings. By order dated 28th May 2012, this Court allowed the application and dispensed with the requirement of convening meetings of equity shareholders, secured and unsecured creditors of the Petitioner companies.

2. The registered offices of the Transferor and Transferee companies are situated within the National Capital Territory of Delhi and are within the jurisdiction of this Court.

3. The details of the dates of incorporation of Transferor and Transferee companies, their authorized, issued, subscribed and paid-up capital have been set out in the petition.

4. Copies of the Memorandum and Articles of Association as well as the latest audited annual accounts for the year ended 31st March 2012 of both the Transferor and Transferee companies have also been enclosed along with Co. Appl. (M) No.96 of 2012.

5. Learned counsel for the Petitioner companies submits that no proceedings u/s 235 to 251 of the Act are pending against the Petitioner companies.

6. The proposed Scheme has been approved by the Boards of Directors of both the Transferor and Transferee companies. Copies of the board resolutions have been filed along with the application. As per the Scheme, the Transferee company shall allot to the shareholders of Transferor companies equity shares in specified proportions.

7. The Petitioners companies have thereafter filed the present petition seeking sanction of the proposed Scheme. By order dated 2nd July 2012, notice in the petition was directed to be issued to the Regional Director (RD), Northern Region, and the Official Liquidator (OL). By order dated 9th July 2012, citations were also directed to be published in The Statesman (English, Delhi Edition) and Veer Arjun (Hindi, Delhi Edition). Affidavit of service and publication has been filed by the Petitioners showing compliance regarding service of the Co. P.No. 287 of 2012 on the RD and the OL and also regarding publication of citations in the aforesaid newspapers on 7th August 2012, copies of the newspaper cuttings, in original, containing the publications have been filed with the affidavit of service.

Issue 2: Compliance with statutory requirements and objections raised by the Regional Director (RD) and Official Liquidator (OL).

8. Pursuant to the notices issued, the OL sought information from the Petitioner companies. Based on the information received, the OL has filed his report dated 25th September 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 Petitioners companies do not appear to have been conducted in a manner prejudicial to the interest of its members, creditors, or to public interest.

9. Counsel for the Petitioner companies has filed an affidavit dated 21st September 2012 confirming that neither the Petitioner companies nor their counsel has received any objection pursuant to the citations published in the newspapers.

10. Mr. Rakesh Chandra, the RD, has filed an affidavit on 4th December 2012 pointing out several observations, including the justification for raising capital at a huge premium, details of unsecured loans, non-filing of balance sheets, undisclosed income, and approval u/s 297 of the Act.

11. In response, the transferee company filed an affidavit dated 13th December 2012 addressing these observations, stating that shares were allotted considering future profitability, unsecured loans were from directors or their relatives, balance sheets were filed, the undisclosed income issue was under compounding, and no approval was required u/s 297 for certain transactions.

12. Mr. Rakesh Chandra, the RD, filed an additional affidavit dated 2nd January 2013, stating that