Allowed

Sgs Tekniks Manufacturing Pvt. Ltd. and Ors. v. -----

Punjab & Haryana HC2 Aug 2012CP/36/2012

Case brief

AI extract

What is this about?

The High Court sanctioned a scheme of amalgamation under the Companies Act, 1956, involving three transferor companies and one transferee company. Addressing objections from the Official Liquidator and Regional Director regarding accounting standards and charge registration, the court directed compliance with statutory requirements while vesting assets in the transferee company.

What did the court decide?

The Scheme of Amalgamation is sanctioned; assets and liabilities of Transferor Companies vest in the Transferee Company; Transferor Companies dissolve without winding up; Transferee Company to comply

Sgs Tekniks Manufacturing Pvt. Ltd. and Ors… — Company and Corporate | Punjab & Haryana HC (2012)

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C.P. No. 36 of 2012 (O & M) 1

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IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH.

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C.P. NO. 36 OF 2012(O & M) connected within C.P. No. 03 of 2012. Date of Decision: 2nd August,2012.

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IN THE MATTER OF:

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SECTIONS 391 and 394 OF THE COMPANIES ACT, 1956

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AND IN THE MATTER OF :

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Scheme of Amalgamation of

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SGS TEKNIKS MANUFACTURING PRIVATE LIMITED.

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..Petitioner No.1/Transferor Company-1

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AND

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SGS HOLDINGS & LEASING PRIVATE LIMITED.

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...PetitionerNo.2/Transferor Company-2

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AND

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SGS INFOTECH PRIVATE LIMITED.

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...Petitioner No.3/Transferor Company-3

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WITH

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SGS TEKNIKS PRIVATE LIMITED..

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...Petitioner No.4/Transferee Company

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Present: Ms.Munisha Gandhi, Advocate and Mr. Gourav Goel, Advocate and Mr. Vaibhav Sharma, Advocate.

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CORAM:

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HON’BLE MR. JUSTICE SURYA KANT.

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1. Whether Reporters of local papers may be allowed to see the judgment?

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2. To be referred to the Reporters or not?

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3. Whether the judgment should be reported in the Digest?

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SURYA KANT, J. [ORAL]

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C.A. No. 185 of 2012

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Allowed as prayed for.

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C.P. No.36 of 2012

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In this petition under Section 391 and 394 of the

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Companies Act, 1956, duly supported by affidavits, the petitionercompanies seek sanctioning of the Scheme of Amalgamation

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C.P. No. 36 of 2012 (O & M) 2

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(Annexure P/1) of Transferor Companies with Transferee Company.

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[2] Main objects of the the Transferor Companies ( Petitioner No. 1,2 & 3) and Transferee Company (Petitioner No.4) are detailed in their respective Memorandum of Articles and Association annexed with the petition at Annexure P-6, P-8, P-10 and P-12 , respectively.

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[3] The Board of Directors of the SGS TEKNIKS MANUFACTURING PRIVATE LIMITED ( Transferor Company-1) , SGS HOLDINGS & LEASING PRIVATE LIMITED (Transferor Company-2), SGS INFOTECH PRIVATE LIMITED ( Petitioner Transferor Company-3) & SGS TEKNIKS PRIVATE LIMITED (Transferee Company) have approved the Scheme of Amalgamation in their respective meetings held on 02.12.11, vide resolutions Annexures P-2 to P-5, respectively.

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[4] The Authorised Share Capital of Transferor Company -1 as on date of filing this petition is Rs.2,00,00,000/divided into 20,00,000 Equity Shares of Rs.10/- each. Its Issued, subscribed and paid-up capital is Rs.1,50,82,500/- divided into 15,08,250 Equity Shares of Rs.10/- each.

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[5] The Authorised Share Capital of Transferor Company-2 as on date of filing this petition is Rs.50,00,000/- divided into 5,00,000 Equity Shares of Rs.10/- each. Its Issued, subscribed and paid-up share capital is Rs.4,42,380/- divided into 44,238 Equity Shares of Rs.10/- each.

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[6] The Authorised Share Capital of Transferor Company-3 as on date of filing this petition is Rs.50,00,000/- divided

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C.P. No. 36 of 2012 (O & M) 3

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into 5,00,000 Equity Shares of Rs.10/- each. Its Issued, subscribed and paid-up share capital is Rs.49,04,000/- divided into 4,90,400 Equity Shares of Rs.10/- each.

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[7] The Authorised Share Capital of Transferee Company is Rs.1,00,000/- divided into 10,000 Equity Shares of Rs.10/- each and 10,00,000/- divided into 1,00,000 with 10% Redeemable Preference shares of Rs.10/-each. Its Issued, subscribed and paid-up share capital is Rs.1,00,000/- divided into 10,000/- Equity Shares of Rs.10/- each.

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[8] The petitioner companies had earlier approached this Court by way of Company Petition No. 3 of 2012 and vide orders dated 01.02.2012 passed therein the meetings of Un-secured Creditors of the Transferor Company-1 & 3 were directed to be convened. Ms. Jai Shree Thakur and Ms. Divya Sharma, Advocates were appointed as Chairman and co-Chairman for conducting the said meetings. The meetings were held as per schedule and the reports were submitted by the Chairman. The said reports were taken on record and the Ist Motion Petition was disposed of accordingly.

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[9] In this Second Motion Petition, notice was issued to the Regional Director, Northern Regional Ministry of Corporate Affairs, Noida as well as the Official Liquidator and the same was also ordered to be published in the daily 'Financial Express' (English) and 'Jansatta' (vernacular) both Delhi Edition and in the official Gazette of the Government of Haryana. The compliance affidavit of the said order has been placed on record.

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C.P. No. 36 of 2012 (O & M) 4

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[10] Pursuant thereto, the Official Liquidator has submitted the report dated 03.07.2012 by way of affidavit of Mr.B.K. Bansal, Regional Director, Northeren Region, Ministry of Corporate Affairs, Noida. Para 4 & 5 of the said report reads :-

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“ That the deponent further craves leave to submit that on perusal of the Scheme of Amalgamation, it has been observed that there is no mention whether the Petitioner companies have complied with the Accounting Standard-14 issued by the Institute of Chartered Accountants of India.”

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5. “That the Deponent further craves leave to submit at para 25 of Part-IV of the Scheme provides as under:-

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With effect from the Effective Date, the name of the Transferee Company shall be changed to “SGS Tekniks Manufacturing Pvt. Ltd.” Further, without any further act or deed, the name of the Transferee Company where ever it occurs in its Memorandum and Article of Association shall be substituted by “SGS Tekniks Manufacturing Pvt. Ltd.”

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In para 5.1, the Regional Director has submitted that name of Company can be changed /altered only after following the procedure prescribed under the relevant provisions of the Companies Act,1956. It is, therefore, submitted that the Transferee Company may be asked to follow the procedure prescribed under the Companies Act,1956

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[11] The Official Liquidator has also filed his own report dated 10.07.2012 . In para 4 & 5 of the said report the OL has submitted that Chartered Accountant on the basis of the Audited Statements of Accounts and submissions provided by the M/s SGS Tekniks Manufacturing Pvt. Ltd. (Transferor Company-1) and M/s SGS Holding & Leasing Pvt. Ltd. (Transferor Company-2) has

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C.P. No. 36 of 2012 (O & M) 5

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observed that the information regarding the Corporate Guarantee obtained by Transferor Company-1 from Transferor Company-2 on various dates has not been reflected/mentioned in the Audited Accounts of the respective years of the said companies. In para 6, the OL has stated that out of the credit facility sanctioned and availed by the Transferor company-1, charge of Term Loan amounting to Rs. 80,00,000 (Eighty Lacs) was not registered with Registrar of Companies, for which the resolution was also passed by the company on 30.09.2010 as is available in the minutes of the Board. The company has clarified that the charge of Term Loan Rs.80,00,000 (Eighty Lacs) is registered, but substantial proof of registration consisting of Form-8 or Form-17, or the clarification from the bank was not produced before the Chartered Accountant. In the end, the OL has also stated that the affairs of the Transferor Companies No. 1,2 & 3 have been conducted in a manner not prejudicial to the interest of its members and/or to the public at large. [12] Mr.J.S. Gujral, Authorised Signatory of the Transferee Company vide his affidavit dated 27.07.2012 has responded to the above-reproduced observations and in para 2 he has observed that the information with regard to Corporate Guarantee obtained by M/s SGS Tekniks Manufacturing Private Limited (Transferor Company-1) from SGS Holdings & Leasing Private Limited (Transferor Company-2) as on 30-07-2006, 01.08.2007 and 15.12.2007 in respect of Term Loan facility for the amount of Rs. 45 million sanctioned by Citi Bank NA, Jeevan Vihar, 3, Sansad Marg, New Delhi-110001 though has not been reflected in

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C.P. No. 36 of 2012 (O & M) 6

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the audited accounts of the said companies for the respective years that the said Term Loan facility for which Corporate Guarantee was given stands completely discharged and has extinguished as on 30.11.11 hence the guarantee no longer exists. In para 3 it has been submitted that the Transferor Company-1 had filed Form-8 on 17.06.2005 with Registrar of Companies, New Delhi & Haryana in respect of Term Loan facility for the amount of Rs. 45 million sanctioned by the aforementioned bank. A copy of form-8 evidencing the registration of charge was sent to Navneet & Company, the Chartered Accountant appointed by the Official Liquidator. The authorised signatory has also undertaken that the Transferee Company shall comply with the requirements of Accounting Standard 14 (AS-14) issued by Institute of Chartered Accountants of India upon sanction upon sanction of the Scheme and the amalgamation accounting shall be done in terms of the provisions of AS-14 and the goodwill shall be tested for impairment as per provisions of Accounting Standard (AS) 28 issued by the ICAI.

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[13] As regards the change of name of the Transferee Company, it is averred that the Company will follow the statutory requirements under the provisions of the Companies Act, 1956, upon sanctioning of the Scheme.

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[14] The petitioner-Companies have confirmed that there are no investigations or proceedings pending against them under Sections 235 and 251 of the Companies Act.

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[15] For the reasons stated above and keeping in view the procedural requirements as contemplated under Sections 391 to

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C.P. No. 36 of 2012 (O & M) 7

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394 of the Companies Act and the relevant facts and Rules and on due consideration of the reports of Regional Director, Northern Region, Ministry of Corporate Affairs and the Official Liquidator, the Scheme of Amalgamation of the Transferor Companies No.1,2 & 3 with the Transferee Company is hereby sanctioned and as a result thereto, the assets and liabilities of the Transferor Companies shall stand vested in the Transferee Company and the petitionerTransferor Companies shall stand dissolved without being wound up. The Transferee Company shall also comply with the procedural requirements with regard to Accounting Standard-14 and change the name of Company.

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[16] The Scheme shall be binding on the Transferor and the Transferee Companies, their respective shareholders, creditors and all concerned.

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[17] Let formal order of sanction of the Scheme of Amalgamation be drawn in accordance with law and the certified copy of the same be filed with the Registrar of Companies within 30 days from the date of receipt of certified copy of the same.

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[18] A notice of this order be published in the daily 'Financial Express' (English) and ' Jansatta ' (Vernacular) both Delhi Edition and in the official Gazette of the Government of Haryana.

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[19] Any interested person shall be at liberty to apply to the Court for any direction(s) as per law.

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[20] Disposed of accordingly.

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02.08.2012 ( SURYA KANT ) dinesh JUDGE

Sgs Tekniks Manufacturing Pvt. Ltd. and Ors. v. -----

Case brief

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Sgs Tekniks Manufacturing Pvt. Ltd. and Ors. v. -----

Case brief

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