IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 775/2015
Reserved on 3rd May, 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:
Bankey Bihari Marketing Private Limited
Petitioner/Transferor Company No. 1
Suridhi Retail Private Limited
Petitioner/Transferor Company No. 2
WITH
Suridhi Commercial Infra Private Limited
Petitioner/Transferee Company
Through Mr. Rajeev K. Goel, Advocate
for the petitioners
Ms. Aparna Mudiam, Asstt. Registrar
of Companies for the Regional Director
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 Bankey Bihari Marketing Private Limited (hereinafter referred to as the transferor company no. 1) and Suridhi Retail Private Limited (hereinafter referred to as the transferor company no. 2) with Suridhi Commercial Infra Private Limited (hereinafter referred to as the transferee company). CP 775/2015 Page 1 of 8
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 5th November, 2001 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi.
4. The transferor company no. 2 was originally incorporated under the Companies Act, 1956 on 19th November, 2012 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi.
5. The transferee company was incorporated under the Companies Act, 2013 on 5th March, 2015 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi.
6. The present authorized share capital of the transferor company no.1 is Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each. The issued, subscribed and paid-up share capital of the company is Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each.
7. The present authorized share capital of the transferor company no.2 is Rs.1,93,00,000/- divided into 19,30,000 equity shares of Rs.10/- CP 775/2015 Page 2 of 8 each. The issued and subscribed capital of the company is Rs.97,43,210/- divided into 9,74,321 equity shares of Rs.10/- each including 2,36,588 equity shares which were forfeited. The paid-up share capital of the company is Rs.85,56,563 divided into 7,36,834 equity shares of Rs.10/- each, fully paid up, aggregating to Rs.73,68,340/-; 315 equity shares of Rs.10/- each, partly paid up to the extent of Rs.7.50/- per share, aggregating to Rs.2363/-; 584 equity shares of Rs.10/- each, partly paid up to the extent of Rs.5/- per share, aggregating to Rs.2,920/-; and Rs.11,82,940/- being amount paid on 2,36,588 equity shares which were forfeited due to non-payment of call money.
8. The present authorized share capital of the transferee company is Rs.10,00,000/- divided into 1,00,000 equity shares of Rs.10/- each. The issued, subscribed and paid-up share capital of the company is Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each.
9. 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) 148/2015, earlier filed by the petitioners. The audited balance sheets, as on 31st March, 2015, of the transferor and transferee companies, along with the report of the auditors, had also been filed.
CP 775/2015 Page 3 of 8
10. 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 affidavits. 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, pooling of their resources and consolidation of these companies. 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 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.
11. 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:-
"785 equity shares of Rs.10/- each of the transferee company, credited as fully paid up, for every 200 equity shares of Rs.10/- held in the transferor company no. 1."
"96 equity shares of Rs.10/- each of the transferee company, credited as fully or partly paid up, for every 100 equity shares of Rs.10/- held in the transferor company no. 2. In case of partly paid shares in the transferor company no. 2, the CP 775/2015 Page 4 of 8 transferee company will issue equity shares credited as partly paid up to the same extent as in the transferor company no. 2 as on the record date."
12. It has been submitted by the petitioners that no proceedings under Sections 235 to 251 of the Companies Act, 1956 are pending against the petitioner companies.
13. The Board of Directors of the transferor and transferee companies in their separate meetings held on 11th July, 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.
14. The petitioner companies had earlier filed CA (M) No. 148/2015 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 Scheme of Amalgamation. Vide order dated 21st September, 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, to consider and, if thought fit, approve, with or without modification, the proposed Scheme of Amalgamation.
CP 775/2015 Page 5 of 8
15. The petitioner companies have thereafter filed the present petition seeking sanction of the Scheme of Amalgamation. Vide order dated 13th October, 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 'Business Standard' (English) and 'Jansatta' (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 24th October, 2015. Copies of the newspaper clippings containing the publications have been filed along with the said affidavit.
16. Pursuant to the notices issued, the Official Liquidator sought information from the petitioner companies. Based on the information received, the Official Liquidator has filed a report dated 10th March, 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. CP 775/2015 Page 6 of 8
17. 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 21st March, 2016 stating that the Registrar of Companies has not made any adverse comments to the proposed Scheme and that the Regional Director have no objection to the proposed Scheme of Amalgamation.
18. No objection has been received to the Scheme of Amalgamation from any other party. The petitioner companies, in the affidavit dated 15th March, 2016 of Mr. Bhupesh Kumar Dhingra, director of the transferee company have submitted that neither the petitioner companies nor their counsel have received any objection pursuant to the citations published in the newspapers on 24th October, 2015.
19. 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 CP 775/2015 Page 7 of 8 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 & 2 shall stand dissolved without undergoing the process of winding up.
20. Learned counsel for the Official Liquidator prays that costs of at least Rs.1,00,000/- 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 03.05.2016, the petitioners shall deposit a sum of Rs.1,00,000/- by way of costs with the Common Pool Fund of the Official Liquidator.
21. The petition is allowed in the above terms.
Dasti.
SUDERSHAN KUMAR MISRA, J.
May 16, 2016 CP 775/2015 Page 8 of 8