Allowed

Skr Bpo Services Private Limited Vs

Bombay HC5 Mar 2013CSP/858/2012

Case brief

AI extract

What is this about?

The High Court sanctioned a Scheme of Arrangement for the merger of two BPO companies into a third, satisfying statutory requirements under the Companies Act. The Court accepted undertakings regarding accounting adjustments and foreign exchange regulations, dismissed an objector's challenge, and ordered payment of costs.

What did the court decide?

Company Scheme Petitions made absolute with directions to pay stamp duty, file with Registrar of Companies, and pay costs to Regional Director and Official Liquidator.

Skr Bpo Services Private Limited Vs — Specific Performance | Bombay HC (2013)

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CSP858-12.odt

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JP CHAVAN

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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COMPANY SCHEME PETITION NO. 858 OF 2012

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COMPANY SUMMONS FOR DECLARATION NO. 741 OF 2012 SKR BPO Services Private Limited ... Petitioner /First Transferor Company

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WITH

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COMPANY SCHEME PETITION NO. 859 OF 2012

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COMPANY SUMMONS FOR DECLARATION NO. 742 OF 2012 Intelenet Global Services Private .. Petitioner/ Second Limited transferor Company

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WITH

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COMPANY SCHEME PETITION NO. 860 OF 2012

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COMPANY SUMMONS FOR DECLARATION NO. 743 OF 2012 SERCO BPO Private Limited .. Petitioner/ Transferee

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.. Petitioner/ Transferee Company

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In the matter of the Companies Act, 1 of 1956;

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AND

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In the matter of Sections 391 to 394 read with Section 78 and 100 to 104 of the Companies Act, 1956; AND

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In the matter of Scheme of Arrangement between SKR BPO SERVICES PRIVATE LIMITED and INTELENET GLOBAL SERVICES PRIVATE LIMITED with SERCO BPO PRIVATE LIMITED and their respective shareholders and creditors and debenture holders.

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Ms. Alpana Ghone Mr. Rajesh Shah with Mr. Chandrakant Mhadeshwar i/b Rajesh Shah & Co., Advocate for the Petitioners in both Petitions.

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CSP858-12.odt

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Mrs. R. N. Sutar, Asstt. Official Liquidator, present in CSP Nos. 858 of 2012 and 859 of 2012..

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Mrs. Nita Masurkar i/b Dr. T. C. Kaushik for Regional Director in both Petitions.

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Chandrakent Mhadeshwar i/b Rajesh Shah & Co., Advocate for the Petitioners in both Petitions.

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Mrs. R. N. Sutar, Asstt. Official Liquidator, present in CSP Nos. 858 of 2012 and 859 of 2012..

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Mrs. Nita Masurkar i/b Dr. T. C. Kaushik for Regional Director in both Petitions.

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Mr. Vikram Bhatia- Objector

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CORAM : N. M. JAMDAR, J. DATE : 5 March 2013

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P.C.

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Heard counsel for the parties and the objector who has appeared in person.

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Learned Counsel for the Petitioners states that the Petitioner Companies are engaged in call centre services, transaction and data processing, web enabled customer care, data digitization and IT enabled services, the objective of the scheme of arrangement is to consolidate activities of the Transferor Companies with the Transferee Company through amalgamation, so as to create a single robust entity which would carry on businesses that are integrated and complimentary in nature which is in line with the global strategy. The transferor and transferee companies both approved the said Scheme of Arrangement by passing the Board Resolution which are annexed to the respective Company Scheme Petitions. In terms of clause 14 of the scheme, the Transferor Company shall be dissolved without being wound up. The learned Advocate for the Petitioner further states that, Petitioners companies have complied with all

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CSP858-12.odt

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the directions passed in Company Summons for Direction and that the Company Scheme Petition have been filed in consonance with the orders passed in respective Summons for Directions and seeks sanction to the said proposed Scheme of Arrangement.

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The sanction of the Court is sought to a Scheme of Arrangement of SKR BPO SERVICES PRIVATE LIMITED, the First Transferor Company and INTELENET GLOBAL SERVICES PRIVATE LIMITED, the Second Transferor Company with SERCO BPO PRIVATE LIMITED, the Transferee Company, under Sections 391 to 394 read with Section 78 and 100 to 104 of of the Companies Act, 1956.

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Counsel appearing on behalf of the Petitioners has stated that the Petitioners have complied with all requirements as per directions of this Court and that the Petitioners have filed necessary Affidavits of compliance in the Court. Moreover, Petitioner Companies undertake to comply with all statutory requirements, if any, as required under the Companies Act, 1956 and the Rules made thereunder. The said undertaking is accepted.

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The Official Liquidator has filed his report dated 17/01/2013 in Company Scheme Petition Nos. 858 of 2012 and 859 of 2012 stating that the affairs of the Transferor Companies has been conducted in a proper manner and that the Transferor Companies may be ordered to be dissolved. The Regional Director has filed an Affidavit dated 23^rd January, 2013 stating therein that save and except as stated in paragraph 6(a) and 6(b), it appears that the Scheme does not appear to be prejudicial to the interest of shareholders and public. In paragraph 6 of the affidavit, the Regional Director has stated as under:-

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(a)The following line appearing in Clause No.17(c) of the scheme be deleted

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“In case there is balance remaining in the Goodwill Account the same shall be set off only against the Securities Premium Account to be created in the books of the Transferee Company in Future”. In this regard in is submitted that as per section 78 of the Companies Act, 1956 adjustment in the Securities Premium Account is possible only against the exiting share Premium Account and not from future creation, in as much as the quantum of amount likely to be created is not quantified as on date. In this regard the company has submitted its undertaking dated 05/02/213 through M/s. S.R. Hegde & Co., Chartered Accountants to the effect that the 2^nd part of clause 17( c) of the scheme will be deleted from the scheme. Copy of the said letter received by the deponent is annexed here to and marked as Exhibit ‘D’.

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(b) The equity shares of the 1^st Transferor Company are held by foreign body corporate also. Hence while giving effect to the scheme, by issuing shares by the Transferee Company to the Shareholders of Transferor Company, the petitioner company may be directed to comply with FEMA/RBI regulations as applicable in this regard.

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So far as paragraph 6(a) of the affidavit of the Regional Director is concerned the Transferee Company through their Counsel undertakes that in connection with Clause 17, in case there is balance remaining in the Goodwill Account, the same shall be set off only against the existing Securities Premium Account to be created in the books of the Transferee Company and not from future creation.

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So far as paragraph 6(b) of the affidavit of the Regional Director is concerned, the Transferee Company through their Counsel

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CSP858-12.odt

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undertakes that while giving effect to the scheme, by issuing shares by the Transferee Company to the Shareholders of Transferor Company, the Transferee company will comply with FEMA/RBI regulations as applicable in this regard.

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The Learned Counsel for Regional Director on instructions of Mr. M. Chandanamuthu, Joint Director in the office of the Regional Director, Ministry of Corporate Affairs, Western Region, Mumbai states that they are satisfied with the undertakings given by the Advocate for the Petitioner Companies. The said undertakings are accepted.

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An objection has been received from Mr. Vikriam Bhatia, Exemployee of the petitioner Company - SKR BPO Services Private Limited. By order dated 1 March 2013, it was recorded that the objector and the Officer of the Company will have a joint meeting to resolve their differences. The objector states that pursuant to the meeting, he has decided to withdraw his written objection placed on record as well as the case filed by him under the Delhi Shops and Establishment Act bearing No. SE/CD/43/12 within 10 days from today. In view of this position, the the objection raised does not survive. No other objector has come forward.

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From the material on record, the Scheme appears to be fair and reasonable and is not violative of any provisions of law and is not contrary to public policy.

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Since all the requisite statutory compliances have been fulfilled, Company Scheme Petition Nos. 858 of 2012 and 859 of 2012 are made absolute in terms of prayer clauses (a), (b) and (d) and Company Scheme Petition No. 860 of 2012 is made absolute in terms of prayer clauses (a) and (c).

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The Petitioner Companies to lodge a copy of this order and the Scheme duly authenticated by the Company Registrar, High Court (O.S.), Bombay, with the concerned Superintendent of Stamps, for the purpose of adjudication of stamp duty payable, if any, on the same within 60 days from the date of the order.

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Petitioners are directed to file a copy of this order alongwith a copy of the Scheme with the concerned Registrar of Companies, electronically, along with E-Form 21 in addition to physical copy as per relevant provision of the Act.

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The Petitioners in all the Petitions to pay costs of Rs.10,000/each to the Regional Director, Western Region, Mumbai, and the Petitioners in the Company Scheme Petition Nos. 858 of 2012 and 859 of 2012 to pay cost of Rs.10,000/- to the Official Liquidator, High Court, Bombay. Costs to be paid within four weeks from the date of the order.

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Filing and issuance of the drawn up order is dispensed with. All authorities concerned to act on a copy of this order along with Scheme duly authenticated by the Company Registrar, High Court (O. S.), Bombay.

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(N. M. JAMDAR, J.)

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Skr Bpo Services Private Limited Vs

Case brief

What is this about?

What did the court decide?

Skr Bpo Services Private Limited Vs

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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