Loading judgment…
No AI summary yet for this case.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF APRIL, 2015
BEFORE
THE HON’BLE MR. JUSTICE A S BOPANNA
Co.P.No.129/2014 c/w Co.P.No.128/2014 AND Co.P.No.127/2014
Co.P.No.129/2014
BETWEEN :
BCV DEVELOPERS PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 AND HAVING REGISTERED OFFICE AT 29TH FLOOR, WORLD TRADE CENTRE BRIGADE GATEWAY CAMPUS 26/1 Dr. RAJKUMAR ROAD MALLESHWARAM-RAJAJINAGAR BANGALORE-55
… PETITIONER
(BY SRI SHIVA PRASAD E, ADV. FOR SRI KRISHNA B R)
AND :
NIL
… RESPONDENT
(BY SMT. SOWBHAGYA N A, CGC. FOR ROC)
Co.P.No.128/2014
BETWEEN :
BCV ESTATES PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 AND HAVING REGISTERED OFFICE AT 29TH FLOOR, WORLD TRADE CENTRE BRIGADE GATEWAY CAMPUS 26/1 Dr. RAJKUMAR ROAD MALLESHWARAM-RAJAJINAGAR BANGALORE-55
… PETITIONER
(BY SRI SHIVA PRASAD E, ADV. FOR SRI KRISHNA B R)
AND :
NIL … RESPONDENT (BY SRI. K S MAHADEVAN & SRI V JAYARAM, ADVs. FOR OL SMT. SOWBHAGYA N A, CGC. FOR ROC)
Co.P.No.127/2014
BETWEEN :
CV PROPERTIES PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 AND HAVING REGISTERED OFFICE AT 29TH FLOOR, WORLD TRADE CENTRE BRIGADE GATEWAY CAMPUS 26/1 Dr. RAJKUMAR ROAD MALLESHWARAM-RAJAJINAGAR BANGALORE-55
… PETITIONER
(BY SRI SHIVA PRASAD E, ADV. FOR SRI KRISHNA B R)
AND :
NIL … RESPONDENT
(BY SRI. K S MAHADEVAN & SRI V JAYARAM, ADVs. FOR OL SMT. SOWBHAGYA N A, CGC. FOR ROC)
THESE PETITIONS ARE FILED UNDER SECTIONS 391 TO 394 OF THE COMPANIES ACT, 1956, R/W RULE 9 OF THE COMPANIES (COURT) RULES, 1956, PRAYING TO THAT THE SCHEME BEING ANNEXURE K TO THE PETITIONED BE SANCTIONED BY THIS COURT SO AS TO BE BINDING WITH EFFECT FROM THE APPOINTED DATE (AS DEFINED IN THE SCHEME) ON THE PETITIONER COMPANY AND ITS RESPECTIVE MEMBERS AND CREDITORS AND ALL PERSONS CONCERNED UNDER THE SCHEME AND ETC.
THESE PETITIONS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner-company in Co.P.No.129/2014 is the Transferee Company and the petitioner-companies in Co.P.Nos.128/2014 and 127/2014 are the Transferor companies No.1 and 2 respectively in respect of the Scheme of Amalgamation as at Annexure-K. They are before this Court seeking sanction of the Scheme.
The Transferor companies No.1 and 2 were incorporated on 09.09.2010 and 19.07.2013. The Transferee company was incorporated on 01.04.2008. During their subsistence, they have evolved a Scheme of Amalgamation. The Board of Directors of the respective companies by their resolution dated 18.04.2013 had approved the scheme. The scheme was thereafter to be considered and consented by the shareholders and the creditors. Since the shareholders had consented to the Scheme in writing, all the above noted companies had approached this Court in C.A.Nos.49/2014, 48/2014 and 47/2014 respectively. This Court by the separate orders dated 25.03.2014 had dispensed with the convening of the meeting of the equity shareholders and secured creditors in respect of the Transferee as well as Transferor companies No.1 and 2 while the meeting of the unsecured creditors in respect of Transferee company
was scheduled to be held. Accordingly, the meeting was held, the Chairman has filed his report and the same has been accepted by this Court. The petitioners are accordingly before this Court in these petitions.
On these petitions being filed, notice was directed to the Regional Director in respect of all the companies, while notice was directed to the Official Liquidator in respect of the petitions filed by the Transferor companies on 24.07.2014. Further, the filing of these petitions seeking sanction of the scheme was also directed to be published in ‘The Hindu’ English Daily and ‘Kannada Prabha’ Kannada Daily, which has been complied and the same is taken on record.
Insofar as the Transferor companies, the Official Liquidator had sought for appointment of Chartered Accountant to verify the books and the
relevant documents by filing OLR No.404/2014 in Co.P.No.128/2014 and OLR No.405/2014 in Co.P.No.127/2014. Sri Krishna Prasad B.K. was accordingly appointed as the Chartered Accountant to verify the books of accounts. On verification of the records, they have opined that the said companies have not conducted their affairs against the public interest or against the interest of its members. Based on the same, the Official Liquidator has filed the reports in OLR Nos.568 and 567 of 2014, reporting the said fact to this Court and submitting that the scheme be sanctioned and as a result, the said Transferor companies be ordered to be dissolved without the order of winding up.
The Regional Director on receipt of notice has authorized the Registrar of Companies to verify the Scheme and file appropriate affidavit before this Court. In that light, the Registrar of Companies has examined
the Scheme and has filed the affidavit dated 03.12.2014 in all these cases. Insofar as the Scheme as submitted by the petitioner companies, no negative observation has been made. However, with regard to the communication received from the Income Tax Department, on being notified the contents of the said communication, it is observed in the affidavit to the effect that the Transferee Company would have to abide by the provisions of the Income Tax Act and Rules and remain liable for all tax liability as well as the outgoings in respect of the Transferor companies. In reply to the said affidavit, the Company has tendered its affidavit dated 27.04.2015 indicating therein to adhere to the provisions of the Income Tax and to indicate that the Transferee Company would remain liable for all taxes relating to the Transferor Companies. On the reply affidavit being filed, the
Regional Director has not raised any further observations in this regard.
In the above background, at the outset, it is noticed that the authorities concerned on having notified, have not objected to the Scheme being sanctioned, but have only indicated that the Scheme be sanctioned subject to compliance being made and the Transferee company has undertaken to comply with the same.
Thus a perusal of the papers would indicate that on consideration of the Scheme, the competent authorities have raised observation only relating to the provisions to be made in the Scheme and the same have been satisfactorily replied by the petitioner companies. Further, despite publication of the filing of these petitions, no person interested in the affairs of the
petitioner companies or their members have raised any objection to the sanction of Scheme by this Court.
In that light, a perusal of the Scheme available at Annexure-K would indicate that the Transferee company would remain liable for all compliances on the Scheme becoming operational. The Scheme in Clause-11 provides to protect the interests of the staff and employees of the Transferor companies.
In the light of the above, the prayer made in the petitions is liable to be granted. In the result, the following: ORDE R i) Co.P.Nos.129/2014, 128/2014 and 127/2014 are allowed. (ii) The Scheme of Amalgamation at Annexure-K is sanctioned so as to bind the shareholders,
members and creditors of the Transferor and Transferee companies. (iii) The Transferor companies named above shall stand dissolved without the process of winding up. (iv) A copy of this order shall be filed with the Registrar of Companies within thirty days from the date of receipt of the copy.
Sd/-
JUDGE
hrp/bms