Hovel Developers Pvt. Ltd & Ors. vs -----------------------
2012 Latest Caselaw 7146 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Date of Judgment:13.12.2012.

+      COMPANY PETITION NO. 404 OF 2012


In the matter of The Companies Act, 1956
Petition under Sections 391 & 394 of the
Companies Act, 1956 Scheme of Amalgamation of

1.     Hovel Developers Private Ltd.
                              .... Transferor/ Petitioner Company No. 1

                               And

2.     Ace HR Services Pvt. Ltd.
                              ... Transferor/ Petitioner Company No. 2

                               With

3.     Railtech Infraventure Pvt. Ltd.
                                ... Transferor/ Petitioner Company No. 3

                                        Petitioner/Transferee Company

              Through :     Mr N.Kumar, Advocate for the Petitioners

                            Mr.S.K. Pradhan, Dy. Registrar on behalf
                            of the ROC.

                            Mr. Rajiv Bahl, Advocate for the Official
                            Liquidator.



C.P. No.404/2012                                          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 M/s Hovel Developers Pvt. Ltd. & M/s

Ace HR Services Pvt. Ltd., the transferor companies with M/s Railtech

Infraventure Pvt. Ltd. The registered offices of all the Petitioner

Companies are situated at New Delhi, within the jurisdiction of this

Court.

2. It has been submitted that no proceedings under sections 235 to

251 of the Companies Act, 1956 is pending against the Petitioner

Companies.

3. The Petitioner Companies had earlier filed CA (M) 129 of 2012

seeking directions of this Court for dispensation/convening of meetings.

Vide order dated August 17th, 2012, this Court allowed the Application

and dispensed with the requirement of convening all the meetings of

Shareholders and Creditors of the Applicant Transferor Companies and

Transferee Company.

4. The Petitioner Companies had thereafter filed the present

Petition seeking sanction to the Scheme of Amalgamation. Vide order

dated September 3, 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

'Indian Express' (English, Delhi Edition) and 'Jansatta' (Hindi, Delhi

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 newspaper.

Copies of the newspaper cuttings, in original, containing the

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

5. Pursuant to the notice issued, the Learned Official Liquidator

sought information from the Petitioner Companies. Based on the

information received, the Learned Official Liquidator has filed his report

dated December 10, 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 Companies, which is a subject matter of dissolution, do not

appear to have been conducted in a manner prejudicial to the interest of

its members, creditors or to public interest.

6. 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 December 7,

2012. Relying on the Scheme of Amalgamation, he has stated that, upon

sanction of the Scheme, all the staff/employees of both the Transferor

Companies shall become the employees of the Transferee Company

without any break or interruption in their services upon sanctioning of

the Scheme by the Hon'ble Court.

7. Under para 5 of the said report, Regional Director has further

stated that on perusal of balance sheet as at 31.03.2011 of the transferor

company no. 1 , it was observed that the company had allotted 77,290

shares at a premium of Rs. 190 during the financial year 2010-2011. the

net worth of the transferor company no. 1 as on 31.03.2010 was also

calculated in the report of the Sh. Rakesh Chandra, Regional Director

and stated further that the net worth per share of the transferor company

no. 1 was Rs. 14.93 only and therefore, the equity capital raised as at

31.03.2011 could not command such high premium of Rs. 190 per

share. Under para 6 of the said report, it is further stated by Sh. Rakesh

Chandra, Regional Director that all the transferor and transferee

companies have not filed their balance sheets as well as the annual

returns for the year 2012 so far and thus, a contravention of provisions

of Section 159/ 220 of the Companies Act was reported.

8. In response to the points raised by Sh. Rakesh Chandra,

Regional Director, Sh. Ajai Kumar Bansal has filed his affidavit dated

12.12.2012 on behalf of the petitioner companies wherein it is stated

that the transferor company no. 1 is a closely held private limited

company in which neither any public is interested nor there is any

guideline prescribed for fixation of premium on shares and the

promoters, directors, their family members and close associates decided

the premium on shares applying their wisdom considering their future

plans of business. It is further submitted that all the three companies are

under the same management and all the shares in all the three petitioner

companies are owned, controlled and held by the same family and their

associates who have in their respective extra ordinary general meetings,

after considering all relevant facts as regards the financial statements,

net worth, share valuation report etc., have unanimously approved the

scheme of amalgamation. Even the shareholders of transferee company

have approved the same unanimously. Under para 7 of the said affidavit,

the authorized signatory of the petitioner companies further states that

annual general meeting of all the companies have already been held and

the balance sheet and annual return of the transferee no. 1 has already

been filed. It is further stated that transferor company no. 2 and the

transferee company have obtained extension of two months for holding

their annual general meetings from the Office of Registrar of

Companies. The petitioner companies have also filed necessary

documents along with the said affidavit in support of their submissions.

9. In view, of the aforesaid, the observations made by the regional

Director no longer survives.

10. It is further submitted by the petitioner companies that no

objection has been received to the Scheme of Amalgamation from any

other party.

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

Creditors of the Petitioner Companies; 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

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 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.

12. The Petitioner Companies would voluntarily deposit a sum of

Rs. One lac in the Common Pool fund of the Official Liquidator within

three weeks from today.

13. The Petition is allowed in the above terms.

Order Dasti.

INDERMEET KAUR, J DECEMBER 13, 2012 A