Delhi High Court
M/S. Gwm Industries Pvt. Ltd. vs M/S. Pankaj Travels Pvt. Ltd. on 11 November, 2010
Author: Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ COMPANY PETITION 147/2006
M/s GWM INDUSTRIES PRIVATE LIMITED...........................Transferee Company
Through Mr. J.K. Chawla, Advocate
for the applicant.
WITH
M/S PANKAJ TRAVELS PRIVATE LIMITED ..... Transferor Company
Through Mr. B.S. Pradhan, Deputy ROC.
Mr. Rajiv Bahl, Advocate for
Official Liquidator.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 11.11.2010
This second motion under Sections 391(2) and 394 of the
Companies Act, 1956 (Act for short) has been filed by M/s GWM
Industries Private Limited (transferee company) and M/s Pankaj Travels
Private Limited (transferor company) for sanction/approval of the
proposed scheme of amalgamation enclosed as annexure A-5.
2. The transferee company have enclosed with the petition copy of
the order dated 16th September, 2005 passed in Company Application
(M) No.135/2005. By the said order, the Court had dispensed with the
need and requirement to convene meetings of the shareholders and
creditors of the applicant companies after noticing that the shareholders
had given their no objection/consents and the two companies do not
have any creditors.
3. After filing of the present petition, vide order dated 24th July,
COMPANY PETITION 147/2006 Page 1
2006, citations were directed to be published in the newspapers
"Statesman"(English) and "Jansatta" (Hindi) and notices were issued to
the Regional Director (Northern Region) and the Official Liquidator.
4. As the matter had remained pending for some time, vide order
dated 27th July, 2008, on the request of the counsel for the Official
Liquidator, the petitioner was directed to provide copies of minutes
books of shareholder and directors, ledgers and cash books for the last
three years.
5. The Official Liquidator has now filed his report setting out in detail
the history of the two companies as well as their financial position. The
Official Liquidator has stated that the authorized share capital of the
transferee company is insufficient to accommodate allotment of new
shares in the transferee company in view of the swap ratio mentioned in
the scheme of amalgamation. It is stated that the authorized share
capital of the transferee company is required to be increased from
Rs.50,00,000/- to Rs.1,25,00,000/-. The Official Liquidator has further
stated that they have not received any complaint against the proposed
scheme of amalgamation from any person/party interested. It is also
stated that on the basis of the information submitted by the transferor
company, the Official Liquidator is of the view that the affairs of the
transferor company do not appear to have been conducted in a manner
prejudicial to the interest of the members, creditors or public interest.
6. The transferee company has filed an affidavit of Mr. Padam
Bajoria stating that consequent upon approval of the scheme of
amalgamation and subsequent increase in authorized share capital, the
COMPANY PETITION 147/2006 Page 2
transferee company shall pay requisite fee and stamp duty in
accordance with law. However, during the course of hearing, learned
counsel for the petitioner has stated that the swap ratio as mentioned in
the proposed scheme of amalgamation (Annexure A-5) can be modified
to one share in the transferee company for every share held by the
members of the transferor company. The said statement made on
behalf of the petitioner company is taken on record and accepted. The
petitioner company will be bound by the said statement. The petitioner
company will be also bound by the averments made in the affidavit of
Mr. Padma Bajoria.
7. Regional Director in his report has stated that as per the letter
dated 2nd May, 2007 written by the transferor and transferee companies
there are no employees, who are required to be absorbed. The second
objection raised by the Regional Director is similar to the objection
raised by the Official Liquidator with regard to enhancement of the
authorized share capital of the transferee company. The said objection
has been noticed above and the directions/concessions given above will
equally apply. The last objection raised by the Regional Director is with
regard to change of name of the transferee company in terms of the
scheme as per which transferee company wants to adopt the name of
the transferor company or any other name. The objection does not
have any merit as para 7 of part-II of the scheme provides as under:-
"The Transferee Company shall have the right
and liberty to change its name and adopt any name
including the name of the Transferor Company
subject, however, to such approvals as may be
COMPANY PETITION 147/2006 Page 3
required inadvertently this regard."
8. The aforesaid clause envisages that change of name will be
subject to approvals as may be required. The use of word
"inadvertently" in this regard seems to be superfluous and an error. In
any case the petitioners in their reply filed before the Court have stated
that transferee company undertakes to duly comply with the provisions
and requirements under the law for change of name.
9. The transferor company has also filed an affidavit dated 15th April,
2010 stating that after filing of the second motion for approval of the
proposed scheme of amalgamation, there has been no change in the
shareholding pattern and the transferor company does not have any
creditors. Similar affidavit has been filed on behalf of the transferee
company by Mr. Padma Bajoria.
10. In view of the aforesaid position, the present petition is allowed
and the scheme of amalgamation is approved subject to aforesaid
modifications/clarifications/concessions. The petition is disposed of
Dasti.
SANJIV KHANNA, J.
NOVEMBER 11, 2010
NA
COMPANY PETITION 147/2006 Page 4
