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TMI Blog2013 (11) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... rights and powers of the Petitioner Transferor Company be transferred to and vest in the Transferee Company as a going concern without any further act or deed. Similarly, in terms of the Scheme, all the liabilities, duties and obligations of the Petitioner Transferor Company be transferred to and vest in the Transferee Company without any further act or deed. Upon the Scheme coming into effect, the Petitioner Transferor Company shall stand dissolved without winding up - Petition allowed. - CO. PET. 609/2012 - - - Dated:- 2-7-2013 - R. V. Easwar,JJ. For the Petitioner : Mr. Sharad Vaid and Ms. Shilpi Jain, Advocates For the Official Liquidator : Mr. K. S. Pradhan, Dy. Registrar of Companies for the Regional Director Mr. Rajiv Bahl, Advocate JUDGMENT R. V. Easwar, J. (Oral) 1. This second motion petition has been filed under Sections 391 to 394 of the Companies Act, 1956 ( Act‟) by Emeter India Private Limited (hereafter referred to as Petitioner Transferor Company‟) seeking sanction of the Scheme of Amalgamation ( Scheme‟) of the Petitioner Transferor Company with Siemens Technology and Services Private Limited (hereafter referred to as Tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court allowed the application and dispensed with the requirement of convening and holding the meetings of the shareholders and the creditors of the Petitioner Transferor Company. 9. The Petitioner Transferor company had thereafter filed CA No. 2332 of 2012 in CA (M) 179 of 2012 stating, inter alia, that (i) Petitioner Transferor Company is the wholly owned subsidiary of the Transferee Company and no new shares shall be issued by the Transferee Company, thus, the Scheme does not entail any reorganization of the capital of the Transferee Company and (ii) Petitioner Transferor Company is a profit making company having a positive net worth and as such, the rights and interest of any of the shareholders or creditors of the Transferee Company will not be affected by the Scheme and accordingly sought directions for dispensation from approaching the Transferee Company‟s jurisdictional High Court at Bombay for seeking sanction of the Scheme, which was disposed of by order dated 16th January 2013. By this order, following the orders in Auto Tools India Pvt. Ltd [Co. Appl. (M) No.41 of 2010], Sharat Hardware Industries Pvt. Ltd. (1978) 48 Com. Cas. 23(Delhi), Mahaamba Investments Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no contravention of FEMA regulations in this regard. 13. Pursuant to the notices issued in the petition, the OL sought information from the Petitioner Transferor Company. Based on the information received, the OL has filed his report dated 18th March 2013 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 Petitioner Transferor Company does not appear to have been conducted in a manner prejudicial to the interest of its members or to public interest, subject to his submissions given in para 9 and 10 of his report. 14. An affidavit dated 3rd May 2013, giving point wise reply to the aforesaid report of the OL, has been filed by the Petitioner Transferor Company with this Court in which it has been submitted: - (i) with regard to paragraph 9 of the aforesaid report of the OL, that: - Petitioner Transferor Company had paid off all the unsecured creditors under the head trade payables‟ appearing in its trial balance as on 31st October 2012 and had also provided a certificate dated 7th November 2012 of an independent Chartered Accountant, M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 012, which mistake has been taken note of and rectified by the BoDs of the Petitioner Transferor Company at their meeting held on 5th April 2013. (iii) As for the observation of the OL in paragraph 10 of his aforesaid report to the effect that Auditor of the Transferee Company had, in his report in the Balance Sheet as on 30th September 2011, qualified the report and stated that material discrepancies were noticed on physical verification of fixed assets, it is submitted by the Petitioner Transferor Company in its aforesaid reply to the OL‟s report that the discrepancies on physical verification of fixed assets as noticed by the auditor of the Transferee Company, had been appropriately given effect to by the Transferee Company in its books of accounts and in fact, the Auditor of the Transferee Company had himself, in the very subsequent line in the same paragraph (i)(b) of the Annexure to his report dated 12th December 2011, very clearly stated that these have been properly dealt with in the books of accounts , which sentence has not been reproduced by the OL in his aforesaid report and as such the Transferee Company has taken proper care of the discrepancy found on physic ..... 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