Delhi High Court
Shanu Estates Private Limited & ... vs ................... on 11 December, 2012
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:11th December 2012
+ COMPANY PETITION NO. 430 of 2012
Connected with
COMPANY APPLICATION (M) NO. 95 OF 2012
IN THE MATTER OF
THE COMPANIES ACT, 1956 (1 of 1956)
SECTION 391 AND 394
IN THE MATTER OF
AMALGAMATION OF Shanu Estates Private Limited
Transferor Company
WITH
Nightingale Farms Private Limited
Transferee Company
Petitioner Companies
Through Mr Ashish Middha and Ms. B.
Maragatha Nithya, Advocate for the
Petitioners
Mr. Pradhan, Dy. Registrar, Registrar of
Companies for the
Regional Director
Mr.Rajeev Behl, Advocate for Official
Liquidator
Page 1 of 8
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1. This joint Petition has been filed under sections 391 & 394 of
the Companies Act, 1956 by the Petitioner Companies seeking
sanction to the Scheme of Amalgamation of Shanu Estates
Private Limited, Petitioner/ Transferor Company with
Nightingale Farms Private Limited.
2. The registered offices of the Petitioner Companies are
situated at New Delhi, within the jurisdiction of this Court.
3. Details with regard to the date of incorporation of Petitioner
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 the Petitioner Companies have
also been enclosed with the Petition.
5. Copies of the Resolutions passed by the Board of Directors
of the Petitioner Companies approving the Scheme of
Amalgamation have 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 Petitioner Companies.
7. The Petitioner Companies had earlier filed CA (M) 95 of
2012 seeking directions of this Court for
dispensation/convening of meetings. Vide order dated 24th
July, 2012, this Court allowed the Application and
requirement of convening all the meetings of Shareholders
and Creditors of the Transferor Company and of the
Transferee Company were dispensed with.
8. The Petitioner Companies had thereafter filed the present
Petition seeking sanction to the Scheme of Amalgamation.
Vide order dated 12th September 2012, notice of the
Petition was directed to be issued to the Regional Director,
Northern Region and the Official Liquidator attached with
this Court. Citations were also directed to be published in
"Business Standard" in English and "Veer Arjun" in Hindi
and the same were published on 22nd November'2012 as
per the orders of the court. Affidavit and Publications has
been filed by the Petitioners showing compliance regarding
service of the Petition on the Regional Director, Northern
Region and the Official Liquidator, Delhi and also
regarding publication of citations in the aforesaid
newspaper. Copies of the newspaper cuttings, in original,
containing the publications have also been filed along with
the Affidavit of Service.
9. In response to the notice issued in the Petition, Mr Rakesh
Chandra, Learned Regional Director, Northern Region,
Ministry of Corporate Affairs has filed his Affidavit/Report
dated 29th November, 2012. Relying on the Scheme of
Amalgamation, he has stated that, upon sanction of the
Scheme, all the employees of the Transferor entity shall
become the employees of the Transferee Company without
any break or interruption in their services. The Learned
Regional Director has submitted that the Central
Government has no objection to the proposed Scheme of
Amalgamation. The Regional Director has stated in his
affidavit that the Balance Sheet for the period ending 31st
March'2012 has not been filed to till date. The counsel for
the petitioner companies had stated at Bar that the same has
been filed on 8th December'2012 and the Regional Director
has verified the receipts.
10. The Official Liquidator has also filed its report and in its
report it had raised the objection that the valuation report is
not on the basis of Book Value of shares. The counsel for
the petitioner companies had relied on the Judgment dated
19th October,2011 in M/s Preet Machines Limited and
Judgment dated 1st June'2012 in M/s Indrama Investment
Pvt. Limited wherein it both the judgments the courts had
relied upon the Mihir H.Mafatlal Vs. Mafatlal Industries
Limited and have held that the once the exchange ratio of
the shares have been worked out by the Chartered
Accountants, who are expert in the field of valuation and if
no mistake is pointed out in the said valuation, it is not for
the court to substitute is exchange ratio, especially when it
has been accepted without demur unanimously by all the
shareholders of the two companies or to say that the
shareholders in their collective wisdom shall not have
accepted the said exchange ratio on the ground that it would
be detrimental to their interest. The objection raised by the
Official Liquidator is thus without merit.
11. No objection has been received to the Scheme of
Amalgamation from any other party. Mr.Ajay K.Gupta and
Ms.Sonia Gupta, Directors of the Petitioner Companies has
filed an affidavit confirming that neither the Petitioner
Companies nor their Counsel has received any objection
pursuant to citations published in the newspapers.
12. In view of the approval accorded by the Shareholders and
Creditors of the Petitioner Companies; representation filed
by the Regional Director, Northern Region and no
objection by the Official Liquidator, 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 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 Companies Act, 1956, all the property,
rights and powers of the Transferor Company be transferred
to and vest in the Transferee Company without any further
act or deed. Similarly, all the liabilities and duties of the
Transferor Company be transferred to the Transferee
Company without any further act or deed. 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.
13. The Petitioner Companies would voluntarily deposit a
sum of Rs. 1 Lac in the Common Pool fund of the Official
Liquidator within three weeks from today.
14. The Petition is allowed in the above terms.
Order Dasti.
Indermeet Kaur, J.
DECEMBER 11, 2012
