Mr.Atul v. Sood

Present: Mr.Atul V. Sood, Advocate, for the petitioner. Mr. D.P. Ojha, Offical Liquidator. CORAM: HON’BLE MR. JUSTICE SURYA KANT.

3. Whether Reporters of local papers may be allowed to see the judgment? To be referred to the Reporters or not? Whether the judgment should be reported in the Digest? SURYA KANT, J. [ORAL] In this petition under Section 391(2) and 394 of the Companies Act, 1956, duly supported by affidavit, the petitioner- company seeks sanctioning of the Scheme of Amalgamation (Annexure P/1) of the Transferor Company with the Transferee Company. [2] Main objects of the Petitioner-Transferor Company and the Transferee company are detailed in their respective Memorandum and Articles of Association annexed with the petition at Annexure P-2 and P-4, respectively. C.P. No.67 of 2012 (O&M) :: 2:: [3] It is averred in the petition that the registered office of Petitioner-Transfeor company is at 404 B, 4th Floor, Centrum Plaza, DLF Golf Course Road, Sector 53, Gurgaon and the said company is registered with the Registrar of Companies at New Delhi. The registered office of the Transferee Company is situated at Solitaire Corporate Park, Building No.5, Ist Floor, Andheri (East), Mumbai and it is registered with the Registrar of Companies at Mumbai. [4] The Board of Directors of the Towers Watson Risk consulting Private Limited (Petitioner/Transferor Company) and Towers Watson India P. Ltd.(Transferee Company ) have approved the Scheme of Amalgamation in their respective meetings held on

23.02.2012, vide resolutions Annexures P-6 & P-7, respectively. [5] The authorized, issued, subscribed and paid-up share capital of the petitioner-Transferor Company as on 31.03.2011 is as follows: Authorized Share Capital 50,00,000 Equity Shares of Rs. 10/-each Total Issued, Subscribed and Paid-up 10,001 Equity Shares of Rs. 10/- each Total (Amount in Rupees ) 5,00,00,000 5,00,00,000 (In Rupees) 1,00,010 1,00,010 [6] The authorized, issued, subscribed and paid-up share capital of the Transferee Company as on 31.03.2011 is as under: Authorized Share Capital 40,00,000 Equity Shares of Rs. 10/-each Total Issued, Subscribed and Paid-up 33,08,005 Equity Shares of Rs. 10/- each Total (Amount in Rupees ) 4,00,00,000 10,00,000 (In Rupees) 3,30,80,050 3,30,80,050 [7] Earlier, the petitioner-companies approached this Court in Company Petition No. 55 of 2012 and vide orders dated 24.05.2012 passed therein the holding of meetings of the Equity Shareholders and Un-Secured Creditors of the petitioner-Transferor company C.P. No.67 of 2012 (O&M) :: 3:: were dispensed with and the Ist Motion Petition was disposed of accordingly. [8] In this Second Motion Petition, notice was issued to the Regional Director,Northern Region, Ministry of Corporate Affairs, Noida as well as the Official Liquidator and the same was also ordered to be published in the daily 'Indian Express' (English) and 'Dainik Bhaskar' (Hindi) and in the official Gazette of the Government of Haryana. The aforesaid order has been complied with and an affidavit to this effect has been placed on record. [9] Pursuant thereto, the Official Liquidator has brought on record the report dated 07.08.2012 by way of affidavit of Mr. Rakesh Chandra, Regional Director, Northren Region, Ministry of Corporate Affairs, Noida. In para 5.1 he has pointed that:- “5.1. .........that the Petitioner Transferor Company may be asked to clarify whether any approval of the FEMA/RBI with regards to transfer of shares to the Foreign Equity is required or not, if deemed fit & proper by the Hon'ble Court.” [10] The Official Liquidator vide his report dated 11.09.2012 has submitted that as per of the observations of the Chartered Accountant the affairs of Transferor Company have not been conducted in a manner prejudicial to the interest of its members,their creditors or to Public interest and hence, the Scheme of amalgamation is not against their interests. [11] As regards the objection raised at para 5.1 by the Regional Director in his affidavit dated 07.08.2012, Mr. Ritesh Goyal, authorised signatory of the Transferor company in paras 3 to 5 of his affidavit has stated as follows: C.P. No.67 of 2012 (O&M) :: 4:: “ 3 That in para no.5.1, it has been wrongly observed that there will be any transfer of shares. In fact, upon the sanction of the Scheme, the existing shareholders of the Transferor Company will be allotted shares in the Transferee Company as per the Exchange ratio determined in the Valuation Report and no transfer of shares will take place. Therefore, the observation of the Regional Director are unfounded. That without prejudice to above, it is submitted 4. that Watson Wyatt Holding Limited U.K. and Shri Vivek Nath (nominee shareholder), the shareholders of the Transferor Company shall be allotted 89 shares in the Transferee Company in lien of one share held in the Transferor Company as mentioned in the Scheme, more particularly in Clause 10.

5. That it is clarified that no approval of FEMA/RBI is required for the allotment of shares as mentioned in para 4 above and only a form known as FCGPR is required to be filed with the Authorised Dealer within 30 days of the issue of shares to the shareholders of the Transferor Company under the Scheme of Amalgamation duly approved by the Hon'ble High Court. Further, it is clarified that both the Petitioner companies are engaged in activities in which 100% foreign investment is permitted under the automatic route. That the deponent further states that in case 6. any approval is required under any law for allotment of shares as mentioned in para 4 above and as observed by the Regional Director, the Petitioner undertakes to seek the same as statutorily required.” The above-stated explanation sufficiently responds to the query raised by Regional Director and the Official Liquidator. [12] The petitioner-Companies have further confirmed that there are no investigations or proceedings pending against them under Sections 235 and 251 of the companies act. [13] On consideration of all the relevant facts and the procedural requirements contemplated under Sections 391 to 394 of the Companies Act,1956 read with the relevant Rules, and on due consideration of the reports of Regional Director, Northern Region, C.P. No.67 of 2012 (O&M) :: 5:: Ministry of Corporate Affairs, Noida and the Official Liquidator, coupled with the undertakings and explanation given by the authorised signatory of the petitioner-Transferor Company, Scheme of Amalgamation is hereby sanctioned subject to the sanctioning of the Scheme by Hon'ble Bombay High Court in the petition filed by the Transferee Company, and as a result thereto, the assets and liabilities of the Transferor Company shall stand vested in the Transferee Company and the petitioner-Transferor Company shall stand dissolved without being wound up. The Transferee Company shall allot the shares to the members of the Transferor Companies in terms of Scheme of Amalgamation. The Transferee Company shall also comply with the under taking(s) given by way of affidavits of its Authorised Signatory. [14] The petitioner-companies shall comply with the procedural requirements. [15] The Scheme shall be binding on the petitioner-company, their respective shareholders, creditors and all concerned. [16] 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. [17] A notice of the orders be published in the daily 'Indian Express' (English) and 'Dainik Bhaskar' (Hindi) and in the official Gazette of the Government of Haryana. [18] Any person interested shall be at liberty to apply to the Court for any direction(s) as per law. C.P. No.67 of 2012 (O&M) :: 6:: [19] Disposed of accordingly.

26.09.2012 dinesh ( SURYA KANT ) JUDGE