Span Leisure Projects Private ... vs ----
2012 Latest Caselaw 4886 Del

$~15
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                     Date of Judgment:22.8.2012

+            COMPANY PETITION NO.230 OF 2012

1.    Span Leisure Projects Private Limited
      Having its Registered Office at:
      1st Floor, Vijaya Building,
      17, Barakhamba Road
      New Delhi 110001
                          ....Petitioner No. 1/Transferor Company No 1
2.    Magnum Associates Private Limited
      Having its Registered Office at:
      1st Floor, Vijaya Building,
      17, Barakhamba Road
      New Delhi 110001
                      ....Petitioner No. 2/Transferor Company No. 2
3.    EMC Alloys Private Limited
      Having its Registered Office at:
      1st Floor, Vijaya Building,
      17, Barakhamba Road
      New Delhi 110001
                        ....Petitioner No. 3/ Transferee Company

             Through:   Mr. P.K. Mittal, Advocate for Petitioners.
                        Mr. Rajiv Bahl, Advocate for Official
                        Liquidator.
                        Mr. K.S. Pradhan, Deputy Registrar of
                        Companies for Regional Director,
                        Northern Region.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR
C.P.No.230/2012                                        Page 1 of 10
 INDERMEET KAUR, J. (Oral)

1. This second motion joint Petition has been filed under Sections

391(2) and 394 of the Companies Act, 1956 (for short Act) seeking

sanction of the Scheme of Amalgamation (for short Scheme) of Span

Leisure Projects Private Limited and Magnum Associates Private

Limited (hereinafter referred to as Transferor Companies) with EMC

Alloys 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. Details with regard to the date of incorporation of Transferor and

Transferee Companies, 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 Annual Accounts for the year ended 31st March, 2011

of Transferor and Transferee Companies have also been enclosed with

the Petition.

5. Copies of the Resolutions passed by the Board of Directors of the

Transferor and Transferee Companies approving the Scheme have also

been placed on record.

6. It has been submitted that no proceeding under Sections 235 to

251 of the Act is pending against the Petitioner Companies.

7. All the Transferor and Transferee Companies are closely held

companies and their shares are not listed on any Stock Exchange.

8. A copy of the Scheme 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 claimed by the Petitioner

Companies that the Scheme will result in pooling of their financial,

commercial and other resources, economies of scale and reduction of

overheads. It is further claimed that with enhanced capabilities and

resources at its disposal, the Transferee Company will have greater

flexibility and strength to meet requirements for further growth of

business activities.

9. It is stated that the Transferee Company will issue (1) 1 (One)

Equity Shares of the Transferee Company of the face value of Rs.10/-

each credited as fully paid-up in the capital of the Transferee Company

to the Shareholders of Transferor No.1 Company whose names are

recorded in its Register of Members on a date (Record Date) to be

fixed by the Board of Directors of the Transferee Company for every

34 (Thirty Four) Equity share of Rs.10/- each held by the said

Shareholders in the Transferor No.1 Company and (2) 9 ( Nine)

Equity Shares of the Transferee Company of the face value of Rs.10/-

each credited as fully paid-up in the capital of the Transferee Company

to the Shareholders of Transferor No.2 Company whose names are

recorded in its Register of Members on a date (Record Date) to be

fixed by the Board of Directors of the Transferee Company for every 1

(One) Equity share of Rs.10/- each held by the said Shareholders in

the Transferor No.2 Company.

10. The Petitioner Companies had earlier filed CA (M) No. 78 of

2012 seeking directions of this Court to dispense with the requirement

of convening meetings of the Equity Shareholders and Unsecured

Creditors of the Petitioner Companies. Vide order dated 30 th April,

2012, this Court allowed the application and dispensed with the

requirement of convening meetings of Shareholders and of the

Unsecured Creditors of the Petitioner Companies.

11. The Petitioner Companies have thereafter filed the present

Petition seeking sanction of the Scheme. Vide order dated 15th May,

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 Statesman (English Edition) and Veer

Arjun (Hindi 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

newspapers. Copies of the newspapers cuttings, in original, containing

the publications have been filed along with the Affidavit of Service.

12. Pursuant to the notice issued, the Official Liquidator sought

information from the Petitioner Companies. Based on the information

received, the Official Liquidator has filed his report dated 17.8.2012

wherein he has stated that he has not received any complaint against the

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 their

members, creditors or to public interest subject to submission of para 1.2

of the report wherein Official Liquidator submitted that while valuing

the net assets value per share of the Transferee Company, the Valuer

M/s LB Jha & Co., Chartered Accountants has taken the value of land

on the basis of valuation made by a valuer Ex. B.P. Singh and the said

Valuation Report was not filed with the report submitted by the

Chartered Accountant. In response to the above, the Petitioners

Companies filed the rejoinder affidavit along with the copy of

Valuation Report prepared by the valuer Ex. B.P. Singh clearly showing

the value of land as Rs.5,29,20,000/-. In view of the aforesaid,

submission raised by the Official Liquidator no longer survive.

13. In response to the notice issued in the Petition, Mr. Rakesh

Chandra, Regional Director, Northern Region, Ministry of Corporate

Affairs has filed his Affidavit dated 08.08.2012. Relying on Clause 8.1

of Part- II of the Scheme, he has stated that 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 by the Court.

14. In para No.5.1 of the affidavit dated 8th August, 2012, Mr. Rakesh

chandra has observed that " name of Company can be changed/altered

only after following the procedure under the prescribed under the

relevant provisions of the Companies Act, 1956. Further, in para No.6.1

of the affidavit dated 8th August, 2012, he has observed that the

Memorandum of Association of the Company can be can be

changed/altered only after following the procedure under the prescribed

under the relevant provisions of the Companies Act, 1956.

15. In reply to aforesaid submission, a rejoinder affidavit dated

21.08.2012 has been filed on behalf of the Petitioner Companies by Mr.

Narender Pal, Authorised Signatory of the Petitioner Companies. It is

submitted that the approval of Scheme in terms of Section 391-394 of

the Act is a "Single Window Clearance" and no further act on the part of

Company is required to be done after the approval of the Scheme, for

giving effect of change in the name of the Transferee Company and

alteration in the Memorandum of Association of the Company. Further

the proposed Scheme has been approved by all the Shareholders of the

Petitioner No.3 Company/Transferee Company. The Transferee

Company has no Secured Creditor whereas there are only 2 Unsecured

Creditors who have given their No Objection Certificate. Further the

Petitioner No.3/Transferee Company has already made the provisions in

the Scheme of Amalgamation in Clause No. 14.1 and 15 in respect of

change in the name of the Transferee Company and alteration in the

Memorandum of Association of the Company. Consequently 100%

Shareholders have given their consent for approval. However, the

Petitioner No.3/Transferee Company undertakes to file all the e-forms in

respect of change in the name of the Transferee Company and alteration

in the Memorandum of Association of the Company with the Registrar

of Companies as required under the relevant provisions of the Act.

16. In view of the aforesaid, submissions raised by the Regional

Director no longer survive.

17. No objection has been received to the Scheme from any other party.

Mr. Narender Pal, Authorised Signatory of the Petitioner Companies has

filed an affidavit dated 17.08.2012 confirming that the Petitioner

Companies have not received any objection pursuant to citations

published in the newspapers.

18. Even today, during the course of hearing, Mr. Rajiv Bahl, learned

counsel for Official Liquidator and Mr. K.S. Pradhan, Deputy Registrar

of Companies appearing for Regional Director, Northern Region state

that they have no objection to the present Scheme being sanctioned

except as stated in the Reports submitted by the Official Liquidator and

the Regional Director.

19. In view of the approval accorded by the Shareholders and

Creditors of the Petitioner Companies; affidavit/report filed by the

Regional Director, Northern Region and the Official Liquidator,

attached with this Court to the proposed Scheme, there appears to be no

impediment to the grant of sanction to the Scheme. Consequently,

sanction is hereby granted to the Scheme under Sections 391 and 394 of

the Act. The Petitioner Companies will comply with the statutory

requirements in accordance with law. Certified copy of the formal 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 Act, all the properties, rights and powers of the Transferor

Companies be transferred to and vest in the Transferee Company

without any further act or deed. Similarly, all the liabilities and duties

of the Transferor Companies be transferred to the Transferee Company

without any further act or deed. Upon the Scheme coming into effect,

the Transferor Companies 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 any other charges, if

payable, in accordance with any law; or permission/compliance with any

other requirement which may be specifically required under any law.

20. Mr. P.K. Mittal, learned counsel states that the Petitioner

Companies would voluntarily deposit a sum of Rs. 1,00,000/- with the

Common Pool fund of the Official Liquidator within three weeks from

today. The said statement is accepted.

21. The Petition is allowed in the above terms.

Order dasti.

INDERMEET KAUR, J

AUGUST 22, 2012 nandan