IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 929/2015
Reserved on 27th April, 2016
Date of pronouncement: 16th May, 2016
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):
And
Petition under Sections 391(2) & 394 of the
Companies Act, 1956
Scheme of Amalgamation of:
Basera Realtech Private Limited
Petitioner/Transferor Company No. 1
Bulbul Buildcon Private Limited
Petitioner/Transferor Company No. 2
Daksh Buildpro Private Limited
Petitioner/Transferor Company No. 3
DR Infra Developers Private Limited
Petitioner/Transferor Company No. 4
Hi-Fashion Apparels Private Limited
Petitioner/Transferor Company No. 5
Kashish Buildpro Private Limited
Petitioner/Transferor Company No. 6
Radhey Infra Developers Private Limited
Petitioner/Transferor Company No. 7
Rama Krishna Infratech Private Limited
Petitioner/Transferor Company No. 8
Shri Ganesh Buildpro Private Limited
Petitioner/Transferor Company No. 9
Vishwas Distributors Private Limited
Petitioner/Transferor Company No. 10
CP 929/2015 Page 1 of 14
Yug Computers Private Limited
Petitioner/Transferor Company No. 11
WITH
SRK Tradelinks Private Limited
Petitioner/Transferee Company
Through Mr. Dilip Singh and Ms. Neha
Tandon, Advocates for the petitioners
Ms. Aparna Mudiam, Asstt. Registrar
of Companies for the Regional Director
Mr. Ashish Makhija, Advocate for the
Official Liquidator
SUDERSHAN KUMAR MISRA, J.
1. This joint petition has been filed under Sections 391(2) & 394 of the Companies Act, 1956 by the petitioner companies seeking sanction of the Scheme of Amalgamation of Basera Realtech Private Limited (hereinafter referred to as the transferor company no. 1); Bulbul Buildcon Private Limited (hereinafter referred to as the transferor company no. 2); Daksh Buildpro Private Limited (hereinafter referred to as the transferor company no. 3); DR Infra Developers Private Limited (hereinafter referred to as the transferor company no. 4); Hi-Fashion Apparels Private Limited (hereinafter referred to as the transferor company no. 5); Kashish Buildpro Private Limited (hereinafter referred to as the transferor company no. 6); Radhey Infra Developers Private Limited (hereinafter referred to as the transferor company no. 7); Rama Krishna Infratech Private Limited (hereinafter referred to as the transferor company no. 8); Shri Ganesh Buildpro Private Limited (hereinafter referred to as the transferor company no. 9); Vishwas Distributors Private Limited CP 929/2015 Page 2 of 14 (hereinafter referred to as the transferor company no. 10) and Yug Computers Private Limited (hereinafter referred to as the transferor company no. 11) with SRK Tradelinks Private Limited (hereinafter referred to as transferee company).
2. The registered offices of the transferor and transferee companies are situated at New Delhi, within the jurisdiction of this Court.
3. The transferor company no. 1 was incorporated under the Companies Act, 1956 on 25th June, 2009 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi.
4. The transferor company no. 2 was incorporated under the Companies Act, 1956 on 9th February, 2009 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi.
5. The transferor company no. 3 was incorporated under the Companies Act, 1956 on 8th July, 2009 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi.
6. The transferor company no. 4 was incorporated under the Companies Act, 1956 on 17th August, 2009 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi.
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7. The transferor company no. 5 was incorporated under the Companies Act, 1956 on 12th June, 2006 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi.
8. The transferor company no. 6 was incorporated under the Companies Act, 1956 on 9th July, 2009 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi.
9. The transferor company no. 7 was incorporated under the Companies Act, 1956 on 10th August, 2009 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi.
10. The transferor company no. 8 was incorporated under the Companies Act, 1956 on 6th August, 2009 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi.
11. The transferor company no. 9 was incorporated under the Companies Act, 1956 on 12th August, 2009 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi.
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12. The transferor company no. 10 was incorporated under the Companies Act, 1956 on 11th February, 2009 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi.
13. The transferor company no. 11 was incorporated under the Companies Act, 1956 on 10th February, 2009 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi.
14. The transferee company was incorporated under the Companies Act, 1956 on 10th February, 2009 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi.
15. The present authorized share capital of the transferor company no.1 is Rs.10,00,000/- divided into 10,00,000 equity shares of Rs.1/- each. The issued, subscribed and paid-up share capital of the companies is Rs.9,50,000/- divided into 9,50,000 equity shares of Rs.1/- each.
16. The present authorized share capital of the transferor company no.2 is Rs.10,00,000/- divided into 10,00,000 equity shares of Rs.1/- each. The issued, subscribed and paid-up share capital of the companies is Rs.9,55,000/- divided into 9,55,000 equity shares of Rs.1/- each. CP 929/2015 Page 5 of 14
17. The present authorized share capital of the transferor company no.3 is Rs.8,00,000/- divided into 8,00,000 equity shares of Rs.1/- each. The issued, subscribed and paid-up share capital of the companies is Rs.7,50,080/- divided into 7,50,080 equity shares of Rs.1/- each.
18. The present authorized share capital of the transferor company no.4 is Rs.8,00,000/- divided into 8,00,000 equity shares of Rs.1/- each. The issued, subscribed and paid-up share capital of the companies is Rs.7,62,000/- divided into 7,62,000 equity shares of Rs.1/- each.
19. The present authorized share capital of the transferor company no.5 is Rs.10,00,000/- divided into 10,00,000 equity shares of Rs.1/- each. The issued, subscribed and paid-up share capital of the companies is Rs.9,65,000/- divided into 9,65,000 equity shares of Rs.1/- each.
20. The present authorized share capital of the transferor company no.6 is Rs.11,00,000/- divided into 11,00,000 equity shares of Rs.1/- each. The issued, subscribed and paid-up share capital of the companies is Rs.10,73,000/- divided into 10,73,000 equity shares of Rs.1/- each.
21. The present authorized share capital of the transferor company no.7 is Rs.5,00,000/- divided into 5,00,000 equity shares of Rs.1/- each. CP 929/2015 Page 6 of 14 The issued, subscribed and paid-up share capital of the companies is Rs.4,81,150/- divided into 4,81,150 equity shares of Rs.1/- each.
22. The present authorized share capital of the transferor company no.8 is Rs.12,50,000/- divided into 12,50,000 equity shares of Rs.1/- each. The issued, subscribed and paid-up share capital of the companies is Rs.12,23,200/- divided into 12,23,200 equity shares of Rs.1/- each.
23. The present authorized share capital of the transferor company no.9 is Rs.9,00,000/- divided into 9,00,000 equity shares of Rs.1/- each. The issued, subscribed and paid-up share capital of the companies is Rs.8,59,000/- divided into 8,59,000 equity shares of Rs.1/- each
24. The present authorized share capital of the transferor company no.10 is Rs.9,00,000/- divided into 9,00,000 equity shares of Rs.1/- each. The issued, subscribed and paid-up share capital of the companies is Rs.9,00,000/- divided into 9,00,000 equity shares of Rs.1/- each.
25. The present authorized share capital of the transferor company no.11 is Rs.13,50,000/- divided into 13,50,000 equity shares of Rs.1/- each. The issued, subscribed and paid-up share capital of the companies is Rs.13,16,000/- divided into 13,16,000 equity shares of Rs.1/- each. CP 929/2015 Page 7 of 14
26. The present authorized share capital of the transferee company is Rs.10,00,000/- divided into 10,00,000 equity shares of Rs.1/- each. The issued, subscribed and paid-up share capital of the companies is Rs.9,20,000/- divided into 9,20,000 equity shares of Rs.1/- each
27. Copies of the Memorandum and Articles of Association of the transferor and transferee companies have been filed on record with the joint application, being CA(M) 150/2015, earlier filed by the petitioners. The audited balance sheets, as on 31st March, 2014, of the transferor and transferee companies, along with the report of the auditors, had also been filed.
28. A copy of the Scheme of Amalgamation has been placed on record and the salient features of the Scheme have been incorporated and detailed in the petition and the accompanying affidavit. It is submitted by the petitioners that the transferor and transferee companies are closely held group companies and the proposed amalgamation would result in business synergy and consolidation of these companies into one large company with a stronger asset base. It is claimed that the proposed amalgamation will result in usual economies of a centralized and a large company including elimination of duplicate work, reduction in overheads, better and more productive utilization of human and other resources and enhancement of overall business efficiency. It will enable these CP 929/2015 Page 8 of 14 companies to combine their managerial and operating strength, to build a wider capital and financial base and to promote and secure overall growth of their businesses.
29. So far as the share exchange ratio is concerned, the Scheme provides that, upon coming into effect of this Scheme, the transferee company shall issue and allot equity shares to the shareholders of the transferor companies in the following ratio:
"1,003 equity shares of Rs.1/- each of the transferee company, credited as fully paid up, for every 1,000 equity shares of Rs.1/- each held in the transferor company no. 1."
"1,004 equity shares of Rs.1/- each of the transferee company, credited as fully paid up, for every 1,000 equity shares of Rs.1/- each held in the transferor company no. 2."
"972 equity shares of Rs.1/- each of the transferee company, credited as fully paid up, for every 1,000 equity shares of Rs.1/- each held in the transferor company no. 3."
"974 equity shares of Rs.1/- each of the transferee company, credited as fully paid up, for every 1,000 equity shares of Rs.1/- each held in the transferor company no. 4."
"1,004 equity shares of Rs.1/- each of the transferee company, credited as fully paid up, for every 1,000 equity shares of Rs.1/- each held in the transferor company no. 5."
"1,016 equity shares of Rs.1/- each of the transferee company, credited as fully paid up, for every 1,000 equity shares of Rs.1/- each held in the transferor company no. 6."
"1,777 equity shares of Rs.1/- each of the transferee company, credited as fully paid up, for every 1,000 equity shares of Rs.1/- each held in the transferor company no. 7."CP 929/2015 Page 9 of 14
"1,029 equity shares of Rs.1/- each of the transferee company, credited as fully paid up, for every 1,000 equity shares of Rs.1/- each held in the transferor company no. 8."
"991 equity shares of Rs.1/- each of the transferee company, credited as fully paid up, for every 1,000 equity shares of Rs.1/- each held in the transferor company no. 9."
"997 equity shares of Rs.1/- each of the transferee company, credited as fully paid up, for every 1,000 equity shares of Rs.1/- each held in the transferor company no. 10."
"518 equity shares of Rs.1/- each of the transferee company, credited as fully paid up, for every 1,000 equity shares of Rs.1/- each held in the transferor company no. 11."
30. It has been submitted by the petitioners that no proceedings under Sections 235 to 251 of the Companies Act, 1956 and/or under Sections 210 to 227 of the Companies Act, 2013 are pending against the petitioner companies.
31. The Board of Directors of the transferor and transferee companies in their separate meetings held on 15th June, 2015 have unanimously approved the proposed Scheme of Amalgamation. Copies of the Resolutions passed at the meetings of the Board of Directors of the transferor and transferee companies have been placed on record.
32. The petitioner companies had earlier filed CA (M) No. 150/2015 seeking directions of this court to dispense with the requirement of convening the meetings of their equity shareholders, secured and unsecured creditors, which are statutorily required for sanction of the CP 929/2015 Page 10 of 14 Scheme of Amalgamation. Vide order dated 2nd November, 2015 this court allowed the application and dispensed with the requirement of convening and holding the meetings of the equity shareholders and unsecured creditors of the transferor and transferee companies, there being no secured creditors of the petitioner companies and no unsecured creditors of the transferor companies no. 2, 3, 4, 6, 7, 8, 10 and the transferee company, to consider and, if thought fit, approve, with or without modification, the proposed Scheme of Amalgamation.
33. The petitioner companies have thereafter filed the present petition seeking sanction of the Scheme of Amalgamation. Vide order dated 8th December, 2015, 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 'Statesman' (English) and 'Veer Arjun' (Hindi) editions. Affidavit of service has been filed by the petitioners showing compliance regarding service on the Official Liquidator and the Regional Director, Northern Region and also regarding publication of citations in the aforesaid newspapers on 14th March, 2016 Copies of the newspaper clippings containing the publications have been filed along with the said affidavit.
34. Pursuant to the notices issued, the Official Liquidator sought information from the petitioner companies. Based on the information CP 929/2015 Page 11 of 14 received, the Official Liquidator has filed a report dated 18th April, 2016 wherein he has stated that he has not received any complaint against the proposed Scheme of Amalgamation from any person/party interested in the Scheme in any manner and that the affairs of the transferor companies do not appear to have been conducted in a manner prejudicial to the interest of their members, creditors or public interest, as per second proviso of Section 394(1) of the Companies Act, 1956.
35. In response to the notices issued in the petition, Mr. A. K. Chaturvedi, Regional Director, Northern Region, Ministry of Corporate Affairs has filed his report dated 26th April, 2016 stating that the Registrar of Companies has not made any adverse comments to the proposed Scheme and that the Regional Director has no objection to the proposed Scheme of Amalgamation.
36. No objection has been received to the Scheme of Amalgamation from any other party. The petitioner companies, in the affidavits dated 25th April, 2016 of Mr. Sandeep Gaur, authorized signatory of the transferor companies no. 1, 3, 6, 9 and the transferee company; Mr.Ramakant Choudhary, authorized signatory of the transferor companies no. 2, 4 & 7; Mr. Ravinder Kamat, authorized signatory of the transferor companies no. 5 & 11; Mr. Damodar Sharma, authorized signatory of the transferor company no. 8; and Mr. Sanjay Ram, CP 929/2015 Page 12 of 14 authorized signatory of the transferor company no. 10 have submitted that neither the petitioner companies nor their counsel have received any objection pursuant to the citations published in the newspapers on 14th March, 2016.
37. Considering the approval accorded by the equity shareholders and creditors of the petitioner companies to the proposed Scheme of Amalgamation and the affidavits filed by the Regional Director, Northern Region and the Official Liquidator having not raised any objection 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 this order be filed with the Registrar of Companies within 30 days. It is also clarified that this order will not be construed as an order granting exemption from payment of stamp duty as payable in accordance with law. Upon the sanction becoming effective from the appointed date of Amalgamation, i.e. 1st April, 2015, the transferor companies no 1 to 11 shall stand dissolved without undergoing the process of winding up.
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38. Learned counsel for the Official Liquidator prays that costs of at least Rs.2,00,000/- should be paid by the petitioners keeping in view the fact that the matter has involved examination of extensive records and also prioritized hearings. Learned counsel for the petitioner company states that the same is acceptable to him. As already directed vide order dated 27.04.2016, the petitioners shall deposit a sum of Rs.2,00,000/- by way of costs with the Common Pool Fund of the Official Liquidator.
39. The petition is allowed in the above terms.
Dasti.
SUDERSHAN KUMAR MISRA, J.
May 16, 2016 CP 929/2015 Page 14 of 14