1.This petition tiled by the companies above named is coming up finally before us on 12.05.2017 for the purpose of the approval of the scheme of arrangement, as contemplated between the companies and its shareholders by way of amalgamation of the Transferor Company/Petitioner No. 1 with the Transferee Company/Petitioner No. 2. A perusal of the petition discloses that initially the application seeking the dispensation of the meetings of equity shareholders, secured and unsecured creditors were filed before the Honble High Court of Delhi in CA (M) 52/2016. The Honble High Court of Delhi vide its order dated 06.04.2016, was pleased to dispense with the requirement of convening the meetings of the equity shareholders of both the Petitioner Companies, in view of their consents having been obtained and produced before it. In relation to the Secured and Unsecured creditors of both the Petitioner Companies, the meeting was convened as directed by Honble High Court of Delhi on 14.05.2016.

2.That as per clause 2 of the scheme, the Transferor company is the wholly owned subsidiary of Transferee company and all the shares are held by the Transferee company, on amalgamation no separate consideration shall be paid by the Transferee company to the shareholders of the Transferor company and no shares shall be issued by the Transferee company to any person in consideration of or consequent upon the amalgamation and the share capital of the Transferor company shall be extinguished upon the scheme becoming effective.

3.Under the circumstances, the petitioners have filed their joint petitions for sanction of the Scheme of Amalgamation before the Honble High Court of Delhi under the erstwhile provisions, subsequent to the order of dispensation of the meeting ordered by the Honble High Court of Delhi on 06.04.2016.

4.On 22.07.2016 the Honble High Court of Delhi ordered Notice in the Second Motion petition in C.P. No. 591/2016 moved by the petitioners under Sections 391 to 394 of the Companies Act, 1956 read with relevant Rules of the Companies (Court) Rules, 1959 in connection with the scheme of amalgamation, to the Registrar of Companies, Regional Director and the Official Liquidator. The Petitioners were also directed vide said order to carry out publication in the newspapers Financial Express in English edition and Jansatta in Hindi Edition returnable on 15thDecember, 2016.

5.While the joint petition in C.P. No. 591 of 2016 was pending disposal since the provisions relating to compromises, arrangements and amalgamation as contemplated under Sections 230-232 had been notified w.e.f. 15.12.2016 wherein the power to consider such schemes have now been vested with the National Company Law Tribunal, the Honble High Court of Delhi pursuant to the notification bearing No. DL.33004/99 dated 7.12.2016 issued by the Ministry of Corporate Affairs has transferred/transmitted the records of the above petition to this Tribunal vide order dated 16.01.2017, for our consideration.

6.In view of the above, the petition of Second Motion as above filed by the petitioners jointly before the Honble High Court and subsequently transferred is taken up for final consideration by us. The petitioners, it is seen from the records have filed an affidavit dated 02.12.2016 in relation to the compliance of the orders passed by the Honble High Court of Delhi dated 22.07.2016 and a perusal of the same discloses that the petitioners have effected the paper publication as directed by the Honble High Court of Delhi in one issue of the Financial Express in English edition and Jansatta in Hindi edition on 28thSeptember, 2016. Further, it has also been stated by the Learned Counsel for the Petitioner Companies that notices have been issued to the Regional Director, Northern Region as well as to the Official Liquidator on 29.07.2016 attached to the High Court, Delhi in compliance with the order dated 22.07.2016 and in proof of the same acknowledgement made by the respective offices have also been enclosed.

7.Further, it is also seen that pursuant to the directions from Regional Director, Northern Region, a copy of the Company Petition has also been served on the jurisdictional Income Tax Officer of the Petitioner Companies. The representative of the Official Liquidator represents that the office of Official Liquidator does not have any objection to the scheme being approved. Further, Regional Director, Northern Region has also filed the Affidavit dated 13.12.2016 before the Honble High Court, New Delhi and have stated that there is no objection to the sanction of the Scheme by the Honble Court. However one pertinent observation is made by the Regional Director in para 8 is as follows:

That the Deponent states that the Registrar of Companies, Delhi & Haryana vide para 19 of his report has stated that Transferor Company has not appointed a whole time Company Secretary. Thus there is prima facie violation of section 203 of Companies Act, 2013.

8.In response to the aforesaid observation, the petitioner company has filed a counter affidavit dated 09.05.2107 stating that That the above mentioned alleged violation shall not cause any prejudice to the Shareholders. Further it shall also not cause any impediment on the Scheme. Moreover, the violation is that of the Transferor Company i.e. Mastech Technologies Private Limited which is merging with the Transferee Company i.e. Avaids Technovators Private Limited.

That without prejudice it is pertinent to mention that the Petitioner No. 1/Transferor Company could not appoint Company Secretary for want of suitable candidate as the company was a loss making and no suitable candidate was interested in joining the company.

9.We have heard learned counsels for the petitioners and also considered the representations made by the Regional Director, Northern Region vide representation dated 13.12.2016. An examination of the said representation/affidavit of Regional Director, Northern Region, Ministry of Corporate Affairs, New Delhi discloses that there is no objection to the sanction of the Scheme. A perusal of the representation of Regional Director shows that notice to the Principal Commission of Income Tax, Delhi had been duly sent and that no specific comments/observation have been received raising any objections. Further, it is also represented that the jurisdictional ROC from whom report has been sought has not made any adverse comment. However in relation to non-compliance with the provisions of Section 203 of the Companies Act, 2013/Section 383A of the Companies Act, 1956. It is made expressly clear that the Registrar of Companies will be at liberty to prosecute for non-compliance with the provisions of the Act and under the circumstances, the sanctioning of the Scheme will not act as a demurer to the Scheme.

10.The counsel for Petitioners had stated that they have not received any objections from the third party and public at large for the purpose of sanction to the present Scheme of Amalgamation. The above statement is taken on record. In view of absence of any other objections having been placed on record before this Tribunal and since all the requisite statutory compliances having been fulfilled, this Tribunal sanctions the scheme of amalgamation annexed as Annexure-1 with the Company Petition as well as the prayer made therein.

11.Notwithstanding the above, if there is any deficiency found or, violation committed qua any enactment, statutory rule or regulation, the sanction granted by this court will not come in the way of action being taken, albeit, in accordance with law, against the concerned persons, directors and officials of the petitioners.

12.While approving the Scheme as above, it is clarified that this order should not be construed as an order in any way granting exemption from payment of stamp duty, taxes or any other charges, if any payment in accordance with law or in respect to any permission/compliance with any other requirement which may be specifically required under any law.

THIS TRIBUNAL DO FURTHER ORDER

(1) That all the property, rights and powers of the Transferor Company be transferred without further act or deed to the Transferee company and accordingly the same shall pursuant to section 232 of the Act, be transferred to and vest in the Transferee company for all the estate and interest of the Transferor Company therein but subject nevertheless to all charges now affecting the same; and

(2) That all the liabilities and duties of the Transferor Company be transferred without further act or deed to the Transferee company and accordingly the same shall pursuant to section 232 of the Act, be transferred to and become the liabilities and duties of the Transferee company; and

(3) That all proceedings now pending by or against the Transferor Company be continued by or against the Transferee company; and

(4) That Transferor Company shall within thirty days of the date of the receipt of this order cause a certified copy of this order to be delivered to the Registrar of Companies for registration and on such certified copy being so delivered the Transferor Company shall be dissolved and the Registrar of Companies shall place all documents relating to the Transferor Company and registered with him on the file kept by him in relation to the Transferee company and the files relating to the said both companies shall be consolidated accordingly; and that any person interested shall be at liberty to apply to the Tribunal in the above matter for any directions that may be necessary.

(5) That as per clause 8 of the scheme, all the employees of the Transferor Companies in service on date immediately preceding the date on which the scheme finally take effect shall become the employees of the Transferee company without any break or interruption in their service.

(6) That any person interested shall be at liberty to apply to the Tribunal in the above matter for any directions that may be necessary.