Kalakriti Engineers India ... vs ...................
2012 Latest Caselaw 7043 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of Judgment:10.12.2012

+      COMPANY PETITION NO.386 OF 2012

       IN THE MATTER OF:

       Kalakriti Engineers India Limited                  ... Transferor
                                                        Company No. 1

       Kalakriti Infratrade Private Limited               ... Transferor
                                                        Company No. 2

       First Realtrade Private Limited                    ... Transferor
                                                        Company No. 3

       Richi Look Marketing Private Limited               ... Transferor
                                                        Company No. 4

       Swami Foods Limited                                ... Transferor
                                                        Company No. 5

       Jagriti Tradecon Private Limited                   ...Transferor
                                                        Company No. 6

       MK Realtrade Private Limited                      ...Transferor
                                                       Company No. 7
       Bholeyji Infratrade Private Limited               ...Transferor
                                                      Company No. 8

       Three-D Food and Beverages Private Limited         ...Transferor
                                                        Company No. 9

       Exclusive Agencies Limited                         ...Transferor
Co. Pet. 386/2012                                          Page 1 of 13
                                                              Company No. 10

       Sauda Securities Private Limited                        ...Transferor
                                                             Company No. 11

       Aakash Infratrade Private Limited                       ...Transferor
                                                             Company No. 12

       Ahead Enterprises Limited                               ...Transferor
                                                             Company No. 13

       Arambh Tradecon Private Limited                         ...Transferor
                                                             Company No. 14

                                        WITH
       Akriti Realtech Limited                           ...Transferee
                                                            Company
                             Through     Mr.Rakesh Kumar, Adv.

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

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

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

sanction of the Scheme of Amalgamation of KALAKRITI

ENGINEERS INDIA LIMITED (hereinafter referred to as "the

Applicant/Transferor Company No. 1"), KALAKRITI INFRATRADE

PRIVATE LIMITED (hereinafter referred to as "the

Applicant/Transferor Company No. 2"), FIRST REALTRADE

PRIVATE LIMITED (hereinafter referred to as "the

Applicant/Transferor Company No. 3"), RICHI LOOK

MARKETING PRIVATE LIMITED (hereinafter referred to as "the

Applicant/Transferor Company No. 4"), SWAMI FOODS LIMITED

(hereinafter referred to as "the Applicant/Transferor Company No. 5"),

JAGRITI TRADECON PRIVATE LIMITED (hereinafter referred to

as "the Applicant/Transferor Company No. 6"), MK REALTRADE

PRIVATE LIMITED (hereinafter referred to as "the

Applicant/Transferor Company No. 7"), BHOLEYJI INFRATRADE

PRIVATE LIMITED (hereinafter referred to as "the

Applicant/Transferor Company No. 8"), THREE-D FOOD AND

BEVERAGES PRIVATE LIMITED (hereinafter referred to as "the

Applicant/Transferor Company No. 9"), EXCLUSIVE AGENCIES

LIMITED (hereinafter referred to as "the Applicant/Transferor

Company No. 10"), SAUDA SECURITIES PRIVATE LIMITED

(hereinafter referred to as "the Applicant/Transferor Company No. 11"),

AAKASH INFRATRADE PRIVATE LIMITED (hereinafter referred

to as "the Applicant/Transferor Company No. 12"), AHEAD

ENTERPRISES LIMITED (hereinafter referred to as "the

Applicant/Transferor Company No. 13") and ARAMBH TRADECON

PRIVATE LIMITED (hereinafter referred to as "the

Applicant/Transferor Company No. 14") (hereinafter collectively be

referred as "the Applicant / Transferor Companies) with AKRITI

REALTECH LIMITED ("the Applicant/Transferee Company").

2. The Registered Office of the Applicant/Transferor Companies and

of the Applicant/Transferee Company is situated at New Delhi, within

the jurisdiction of this Hon'ble Court.

3. Details with regard to the date of Incorporation of Applicant /

Transferor Companies and Applicant / Transferee Company, their

Authorized, Issued, Subscribed and Paid up Capital have been given in

the Petition.

4. Copy of the Memorandum and Articles of Association as well as

the latest Audited Annual Accounts for the year ended 31 st March, 2012

of the Applicant/Transferor Companies and the Applicant/Transferee

Company have also been enclosed with the Petition.

5. Copy of the Resolution passed by the Board of Director of the

Applicant / Transferor Companies and the Applicant / Transferee

Company approving the Scheme of Amalgamation has 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

Applicant/Transferor Companies and the Applicant/Transferee

Company.

7. So far as the share exchange ratio for amalgamation is concerned,

the Scheme provides that, upon the Scheme finally coming into effect,

the Transferee Company shall issue shares in the following manner:

Kalakriti Engineers India Limited 10 Shares of Transferee Company for every 26 shares (Transferor Company No.1)

Kalakriti Infratrade Private Limited 10 Shares of Transferee Company for every 28 shares (Transferor Company No.2)

First Realtrade Private Limited 10 Shares of Transferee Company for every 10 shares (Transferor Company No.3)

Richi Look Marketing Private Limited 10 Shares of Transferee Company for every 14 shares (Transferor Company No.4)

Swami Foods Limited 10 Shares of Transferee Company for every 12 shares (Transferor Company No.5)

Jagriti Tradecon Private Limited 1 Share of Transferee Company to every Shareholder irrespective of (Transferor Company No.6) their holding MK Realtrade Private Limited 10 Shares of Transferee Company for every 17 shares (Transferor Company No.7)

Bholeyji Infratrade Private Limited 10 Shares of Transferee Company for every 17 shares (Transferor Company No.8)

Three-D Food & Beverages Private Limited 10 Shares of Transferee Company for every 32 shares (Transferor Company No.9)

Exclusive Agencies Limited 1 Share of Transferee Company to every Shareholder irrespective of (Transferor Company No.10) their holding.

Sauda Securities Private Limited 10 Shares of Transferee Company for every 7 shares (Transferor Company No.11)

Aakash Infratrade Private Limited 10 Shares of Transferee Company for every 176 shares (Transferor Company No.12)

Ahead Enterprises Limited 10 Shares of Transferee Company for every 23 shares (Transferor Company No.13)

Arambh Tradecon Private Limited 10 Shares of Transferee Company for every 11 shares (Transferor Company No.14)

8. The Applicant/Transferor Companies No. 1 to 14 and the

Applicant/Transferee had earlier filed CA (M) No.119 of 2012 seeking

directions of this Court for dispensation/convening of the meetings of its

equity shareholders and the unsecured creditors. Vide order dated 31 st

July 2012, this Court allowed the Application and dispensed with the

requirement of convening meetings of its equity Shareholders and

unsecured creditors.

9. The Applicant / Transferor Companies and the Applicant /

Transferee Company have thereafter filed the present Petition seeking

sanction of the Scheme of Amalgamation. Vide order dated 22nd August

2012, notice in the Petition was directed to be issued to the Regional

Director, Northern Region and to the Official Liquidator. Citations

were also directed to be published in "The Times of India (English)" and

"Jansatta (Hindi)" and in the official Gazette of Delhi. Affidavit of

Service and Publication has been filed by the Applicant / Transferee

Company 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 1 st

September 2012 and in the official gazette on 18 th October, 2012.

Copies of the newspaper's cuttings, in original, containing the

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

copy of the Official Gazette published has also been filed through an

affidavit.

10. In response to the notices issued in the Petition, Shri Rakesh

Chandra, Regional Director, Northern Region, Ministry of Corporate

Affairs (for short "RD") has filed his Affidavit dated 27 November

2012. In the said Affidavit, he raised the certain objections /

observations. The Applicant/Transferee Company has also filed reply

affidavit to the objection / observation raised by the RD. The details of

the said observations / objection of the RD and the reply thereto of the

Applicant / Transferee Company are as under :

(a) That in response to the Para 3, 4 and 5 of the affidavit filed

by the Regional Director, Northern Region, the Applicant/

transferee Company has conceded that all the staff / employees of

all the transferor Companies shall become the employees of the

Transferee Company without any break or interruption in their

services upon sanctioning of the scheme of the Amalgamation by

this Court, the transferee Company undertakes to comply

Accounting Standard - 14 issued by the ICAI and further

undertakes that any amendment in the MOA & AOA for adopting

the object of the transferor Companies by the Transferee

Company shall be carried out after complying the provision

prescribed under the Companies Act, 1956.

(b) In response to Para 6 of the affidavit, the Applicant /

transferee Company has given its justification for issuances of

shares on premium @ Rs. 490 per share to the Transferor

Companies as referred in the para. The justification is that the

Transferor Companies are majorly dealing with the SRS Group of

Companies that has made substantial growth during the previous

couple of years in the various sectors. Further, the said Transferor

Companies had the potential projects to carry out in association

with the SRS Group of Companies. The said Transferor

Companies are the closely held companies related to the close

family / friends / associates. In view of the said cumulative

reasons, the justification has been given for the allotment of the

said shares at a premium of Rs.490/- per share as at 31st March,

2011. It has further been stated that there is no bar under the

Companies Act, 1956 for the issuance of the share capital on

premium by the Company. It has further been stated that even the

Government of India has only latest recognized the issuance of

the share capital on premium by issuing a proviso in the Financial

Bill, 2012 by making an amendment in Section 56(2) of the

Income Tax Act. In view of the said section, now if any Private

Limited Company issue shares on premium, the same shall be

subject to tax under the head "Income from other sources". In

view of the said reasons, the Applicant/Transferee Company has

stated in its affidavit that it had valid justification for the issuance

of shares at a premium of Rs.490/- per share as at 31st March,

2011 in favour of the said Transferee Company.

(c) Further in response to Para-7 of the Affidavit, the Applicant

/Transferee Company has stated that it had already replied to the

office of the Regional Director, vide its letter dated 25 th October,

2012, by stating that their registered office at 3125, Gali No.34,

Beadonpura, Karol Bagh, New Delhi-110005 is the regular

running office since 31st December, 2010. The

Applicant/Transferee Company further undertook and declared in

the affidavit that it is running its office at the said address. The

photographs of the said office of the Applicant/Transferee

Company indicating its office operation has also been attached

with the reply to the affidavit filed by the Applicant/Transferee

Company.

11. That pursuant to the notices issued, the Official Liquidator sought

information from the Applicant / Transferor Companies and the

Applicant / Transferee Company. Based on the information received,

the Official Liquidator has filed his report dated 7-12-2012 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 Applicant / Transferor Companies and the

Applicant / Transferee Company do not appear to have been conducted

in a manner prejudicial to the interest of its members, creditors or to

public interest. Hence, there were no objections reported from the

Official Liquidator.

12. No objection has been received to the Scheme of Amalgamation

from any other party. Mr. Vishal Sorout, Director of the

Applicant/Transferee Company, has filed an Affidavits dated 25-9-2012

and dated 1-12-2012, confirming that the Applicant /Transferee

Company has not received any objection pursuant to citations published

in the newspapers and in the official Gazette of Delhi.

13. In view of the approval accorded by the Equity Shareholders and

the unsecured creditors of the Applicant / Transferor Companies and the

Applicant / Transferee Company; representation / reports filed by 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 Act,

1956. The Applicant / Transferee Company will comply with the

statutory requirements in accordance with law. Certified copy of the

order be filed with the Registrar of Companies within thirty 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 undertaking, the property, rights and powers of the

Applicant / Transferor Companies be transferred to and vest in the

Applicant / Transferee Company without any further act or deed.

Similarly, in terms of the Scheme, all the liabilities and duties of the

Applicant / Transferor Companies be transferred to the Applicant /

Transferee Company without any further act or deed. Upon the Scheme

coming into effect, the Applicant / 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, taxes or any other charges, if payable in accordance with

law; or permission/compliance with any other requirement which may

be specifically required under any law.

14. Learned counsel for the Petitioners states that the Applicant /

transferee Company would voluntarily deposit a sum of Rs. 1 lac in the

Common Pool fund of the Official Liquidator within three weeks from

today. The said statement is accepted.

15. The Petition is allowed in the above terms.

Order Dasti.

INDERMEET KAUR, J DECEMBER 10, 2012 rb