22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:07.11.2012
+ COMPANY PETITION NO. 325 OF 2012
In the matter of
The Companies Act, 1956
And
Petition under Sections 391(2) & 394 of the Companies Act, 1956
Scheme of Amalgamation of
SPANK HOTELS PRIVATE LIMITED
.......... Transferor Company
AND
LEMON TREE HOTELS LIMITED
(formerly known as Lemon Tree Hotels
Private Limited) .................Transferee Company
Through Mr. Mukesh Sukhija, Advocate
for the Petitioners.
Mr. K.S. Pradhan, Deputy Registrar of
Companies for the Regional Director.
Mr.Rajiv Bahl, Advocate for the Official
Liquidator.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
C.P.No325/2012 Page 1 of 9
INDERMEET KAUR, J. (Oral)
1. This joint Petition has been filed under sections 391(2) & 394 of the Companies Act, 1956 by the Petitioner Transferor Company and Transferee Company seeking sanction of the Scheme of Amalgamation of SPANK HOTELS PRIVATE LIMITED (Transferor Company); with Lemon Tree Hotels Limited (Transferee Company).
2. The registered offices of the Petitioner Transferor Company and Transferee Company are situated at New Delhi, within the jurisdiction of this Court.
3. Details with regard to the date of incorporation of Transferor Company and Transferee Company, their authorized, issued, subscribed and paid up capital have been given in the Petition.
4. Copies of the Memorandum and Articles of Association as well as the latest audited Accounts as at 31st March, 2011 of the Petitioner Transferor Company and Transferee Company have also been enclosed with the Petition.
C.P.No325/2012 Page 2 of 9
5. Copies of the Resolutions passed by the Board of Directors of the Petitioner Companies approving the Scheme of Amalgamation have also been placed on record.
6. It has been submitted that no proceedings under Sections 235 to 251 of the Companies Act, 1956 is pending against the Petitioner Companies.
7. So far as Share Exchange ratio is concerned, the Scheme provides that upon amalgamation of the „Transferor Company into the „Transferee Company‟ pursuant to the Scheme of Amalgamation, the following would be the share Exchange Ratio:
"FOR EVERY 1 (ONE) EQUITY SHARE OF RE. 1 (RUPEES ONE) EACH FULLY PAID UP OF SPANK HOTELS PRIVATE LIMITED (TRANSFEROR COMPANY) 2 (TWO) EQUITY SHARE(S) OF RS. 10 (RUPEES TEN) EACH FULLY PAID UP OF LEMON TREE HOTELS LIMITED (TRANSFEREE COMPANY)."
8. The Petitioner Companies had earlier filed CA (M) No. 109 seeking directions of this Court for dispensation/convening of meetings. Vide order dated July 2, 2012, this Court allowed the Application and dispensed with the requirement of convening meetings of Shareholders, C.P.No325/2012 Page 3 of 9 Secured Creditors and Un-secured Creditors of the Transferor Company and the Transferee Company.
9. The Petitioner Transferor Company and the Transferee Company have thereafter filed the present Petition seeking sanction of the Scheme of Amalgamation. Vide order dated July 20, 2012, notice in the Petition was directed to be issued to the Regional Director, Northern Region and the Official Liquidator. Citations were also directed to be published in the „Statesman‟ (English, Delhi Edition) and „Vir Arjun‟ (Hindi, Delhi Edition). Affidavit of Service and Publication has been filed by the Petitioners showing compliance regarding service of the Petition on the Regional Director, Northern Region and the Official Liquidator, and also regarding publication of citations in the aforesaid newspaper on August 20, 2012. Copies of the newspaper cuttings, in original, containing the publications have been filed along with the Affidavit of Service.
10. Pursuant to the notices issued, the Official Liquidator sought information from the Petitioner Companies. Based on the information received, the Official Liquidator has filed his report dated 02.11.2012 wherein he has stated that he has not received any complaint against the C.P.No325/2012 Page 4 of 9 proposed Scheme from any person/party interested in the Scheme in any manner and that the affairs of the Transferor Company do not appear to have been conducted in a manner prejudicial to the interest of its members, creditors or to public interest.
11. In response to the notices issued in the Petition, Mr. Rakesh Chandra, Learned Regional Director, Northern Region, Ministry of Corporate Affairs has filed his Affidavit dated 19th October, 2012. Relying on Clause 7 of the Scheme of Amalgamation, he has stated that, upon sanction of the Scheme of Amalgamation, all the employees of the Transferor Company shall become the employees of the Transferee Company without any break or interruption in their services upon sanctioning of the Scheme of Amalgamation by the Hon‟ble Court.
12. In para 5.1 of affidavit the Regional Director has submitted that para 2 (n) of the Scheme which is as follows:
"Provided always that this Scheme shall not operate to enlarge the security for any loan, deposit or facility created by the Transferor Company which shall vest in the Transferee Company by virtue of the amalgamation of the Transferor Company with the Transferee Company and the Transferee Company shall not be obliged to C.P.No325/2012 Page 5 of 9 create any further or additional security therefore after the scheme has become operative."
is against the basic principle of the Scheme of Amalgamation, where all liabilities are transferred to the Transferee Company and as such this clause may not be allowed.
13. In response to this Submission made by Ld. Regional Director in Para 5.1 of the Affidavit Ms. Suman Singh, authorised signatory of the petitioner Companies, filed an affidavit dated 03.11.2012 stating that para No. 2(n) of the Proposed Scheme of Amalgamation only states that this scheme shall not operate to enlarge or enhance any existing security for the loan or facility created by the Transferor Company and the security provided by the transferor Company for the loans or facility taken/availed before coming into effect of this Scheme of Amalgamation would continue to be the security for said loans or facility which would be transferred to the Transferee Company pursuant to this Scheme of amalgamation. It implies that no further assets of the Transferee Company or the assets of the Transferor Company transferred to the Transferee Company would be available as security for the loans or facility created by the Transferor Company. C.P.No325/2012 Page 6 of 9
14. However, at this stage the learned counsel for the petitioner submits that he would delete Para 2(n) from the Scheme which is accordingly ordered. Additional affidavit to this effect as also the amended Scheme is taken on record.
15. The Authorised Signatory Ms. Suman Singh has also filed an additional affidavit stating therein that the Transferee Company has increased its paid up capital and subsequently the Scheme of amalgamation has been amended pursuant to the provisions of the Clause 13(a) of the Scheme. Copy of the Resolutions of the Board of Directors of the Petitioner Companies have also been placed on record.
16. No objection has been received to the Scheme of Amalgamation from any other party. Ms Suman Singh authorised signatory for the Petitioner Companies, has filed an affidavit dated 03.11.2012 confirming that neither the Petitioner Companies nor the counsel for the petitioner Companies has received any objection pursuant to citations published in the newspapers.
17. In view of the approval accorded by the Shareholders and Creditors of the Petitioner Companies; representation/reports filed by C.P.No325/2012 Page 7 of 9 the Regional Director, Northern Region and the Official Liquidator, attached with this Court to the proposed Scheme of Amalgamation, there appears to be no impediment to the grant of sanction to the Scheme of Amalgamation. Consequently, sanction is hereby granted to the Scheme of Amalgamation under sections 391 and 394 of the Companies Act, 1956. The Petitioner Companies will comply with the statutory requirements in accordance with law. Certified copy of the order be filed with the Registrar of Companies within 30 days from the date of receipt of the same. In terms of the provisions of sections 391 and 394 of the Companies Act, 1956, and in terms of the Scheme, the whole or part of the undertaking, the property, rights and powers of the Transferor Company be transferred to and vest in the Transferee Company without any further act or deed. Similarly, in terms of the Scheme, all the liabilities and duties of the Transferor Company be transferred to the Transferee Company without any further act or deed. Upon the Scheme coming into effect, the Transferor Company shall stand dissolved without winding up. It is, however, clarified that this order will not be construed as an order granting exemption from payment of stamp duty or taxes or any other charges, if payable in C.P.No325/2012 Page 8 of 9 accordance with any law; or permission/compliance with any other requirement which may be specifically required under any law.
18. Learned Counsel for the Petitioners states that the Petitioner Companies would voluntarily deposit a sum of Rs.1,00,000/- in the Common Pool fund of the Official Liquidator within three weeks from today. The statement is accepted.
19. The Petition is allowed in the above terms.
Order Dasti.
INDERMEET KAUR, J NOVEMBER 07, 2012 nandan C.P.No325/2012 Page 9 of 9