TaxTMI 
TaxTMI 
TaxTMI 
2016 (3) TMI 654
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....d office of the transferor company was subsequently changed from Maharashtra to Delhi vide order of the Regional Director, Western Region, Ministry of Corporate Affairs dated 27.09.2013. Consequent to the relocation of the registered office, the number of the transferor company was changed to U27109DL2004PTC123959 vide the certificate issued by the Registrar of Companies, NCT of Delhi and Haryana (in short the ROC). 3. The transferee company, on the other hand, was incorporated prior in point of time i.e. on 03.05.1985 under the name and style: Enexco Consultants Private Limited. Thereafter, the name of the transferee company was changed twice, once to, Enexco Technologies India Private Limited in 1995, and then, with effect from 13.11.1995 to its present name viz., Enexco Technologies India Limited. The registered office of the transferee company at the time of filing CA(M) No. 96/2014 (i.e. the first motion) was at A-35, Chittaranjan Park, New Delhi - 110 019. Its registered office though was relocated to the current address i.e. C-451, Chittaranjan Park, New Delhi - 110 019. 4. The copies of Memorandum and Articles of Association as well as the profit and loss account and the ....
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....ed in the matter. 10.1 In the affidavit, the RD had adverted to clause 17.2 of part V of the scheme, wherein, it has been stated that in the event of this scheme failing to take effect by 01.04.2013 or by such later date as may be agreed to by the respective Board of Directors (BOD) of the petitioners or their respective delegates, this scheme shall become null and void. The RD made an observation that from the said clause it is not clear as to whether the BODs of the petitioners have agreed to an extension of date after 01.04.2013. Hence, the RD avers in its affidavit that petitioners be directed to state whether they have extended the scheme, if any, before the scheme is allowed. 10.2 The affidavit of the RD also alludes to the fact that it has received information from the ROC vide communication date 27.01.2015 that the petitioners are subsidiaries of Beumer Beteiligungsgesellschaft mbH, located at: Oelder, Strasse-40, 59269, Bechim Germany. Hence the RD in its affidavit indicated that the transferee company be called upon to submit an undertaking to the effect that they would seek necessary approvals as required from Reserve Bank of India (RBI) as required under Foreign Excha....
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....ee, working capital limits were granted to the transferor company in lieu of which it paid to Deutsch Bank, AG, interest rate @ 10.5%. Section 77 of the 2013 Act, which creates an obligation to register a charge, was brought into force on 1st April, 2014 and, therefore, the requirement of filing form CHG-1 would apply, only with effect from 01.04.2014. Furthermore, it is averred that since, no charge, whatsoever, has been created by the transferor company, Section 77 of the 2013 Act does not get attracted. Thus, the transferor company, is not required to file form CHG-1. It has been further submitted that even as per section 125 of the 1956 Act, there would be no obligation to register a charge as the guarantee dated 24.01.2013 does not create a charge. 10.9 In response to the petitioners' affidavit, the RD filed another affidavit dated 13.08.2015, wherein it has been averred that a perusal of the e-records maintained under MCA-21 has shown that the petitioners have not as yet filed the copy of the purported BOD's resolution extending the period of the scheme unto 01.04.2017, in compliance of the provisions of section 117(3) r/w 179(3) of the 2013 Act, and therefore, are prima fac....
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....ing into effect the scheme, the transferee company shall issue and allot to the equity shareholders of the transferor company equity shares in the ratio of 1 (one) equity share of the face value of Rs. 10 in the transferee company for every 9 equity shares of the face value of Rs. 10 each in the transferor company. The petitioners further averred that it is a matter of record that upon coming into effect of the scheme, the transferee company shall allot and issue to the equity shareholders of the transferor company equity shares in the ratio of 9 (nine) fully paid up shares of the transferee company of nominal value of Rs. 10 each for every 1 (one) share held by them in the transferor company. This is sought to be justified by placing reliance on the copy of the share valuation report placed on record along with CA(M) No. 96/2014. 12. To be noted, the scheme in clause 8.1 of part-II of the scheme provides that the permanent employees of the transferor company who are in its employment as on the effective date shall become the permanent employees of the transferee company with effect from the effective date without any break or interruption in service. 12.1 Furthermore, as per cla....