Study Overseas India Private ... vs Study Overseas Global Private ...
2012 Latest Caselaw 3786 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Date of Judgment: 02.07.2012

+     COMPANY PETITION No. 126 OF 2012

Study Overseas India Private Limited
                                               ... Petitioner/Transferor Company

                                With

Study Overseas Global Private Limited
                                                ... Petitioner/Transferee Company
                       Through:-        Mr. Suman Jyoti Khaitan with
                                        Ms. Barsha Mishra and Ms.
                                        Sanika Mehra, Advocates for the
                                        Petitioners

                                        Mr. Rajiv Bahl, for the Official
                                        Liquidator

CORAM:
    HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 This second motion petition has been filed by the Petitioner

Companies under Sections 391 to 394 of the Companies Act, 1956

seeking sanction of the Scheme of Amalgamation of Study Overseas

India Private Limited (hereinafter referred to as "the Transferor

Company") with Study Overseas Global Private Limited (hereinafter

referred to as "Transferee Company").

2. The registered offices of the Transferor and Transferee

Companies are situated within the National Capital Territory of Delhi

and are within the jurisdiction of this Court.

3. The Transferor Company was incorporated on 29th day of June,

2007 under the provisions of the Companies Act, 1956 and was issued a

Certificate of Incorporation by the Registrar of Companies, NCT of

Delhi and Haryana.

4. The Transferee Company above named was incorporated on 30 th

day of July, 2007 under the provisions of the Companies Act, 1956 and

was issued a Certificate of Incorporation by the Registrar of Companies,

Mumbai.

5. The Authorized Share Capital of the Petitioner/Transferor

Company is INR 2,80,00,000/- (Rupees Two Crore Eighty Lakh only),

divided into 28,00,000 (Twenty Eight Lakh) Equity shares of INR 10/-

(Rupees Ten) each. The Issued, Subscribed and Paid-Up Share Capital

of the Petitioner/Transferor Company is INR 2,74,72,210/- (Rupees

Two Crore Seventy Four Lakh Seventy Two Thousand Two Hundred

Ten Only) divided into 27,47,221(Twenty Seven Lakh Forty Seven

Thousand Two Hundred Twenty One) Equity shares of INR 10/-

(Rupees Ten) each fully paid up.

6. The Authorised Share Capital of the Petitioner/Transferee

Company is INR 700,00,000/- (Rupees Seven Crore only) divided into

70,00,000 (Seventy Lakh) Equity Shares of INR 10/- (Rupees Ten)

each. The Issued, Subscribed and Paid-Up Share Capital of the

Petitioner/Transferee Company is INR 6,24,00,840/- (Rupees Six Crore

Twenty Four Lakh Eight Hundred Forty only) divided into 62,40,084

(Sixty Two Lakh Forty Thousand Eighty Four) Equity Shares of

INR10/- (Rupees Ten) each.

7. Copies of the Memorandum and Articles of Association of the

Transferor Company and the Transferee Company have been filed on

record. The audited balance sheets, as on 31 st March, 2011, of the

Transferor Company and the Transferee Company, along with the report

of the auditors, have also been filed.

8. A copy of the Scheme of Amalgamation 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

submitted that the Petitioner Companies have the object of transferring

and vesting all the properties, rights and claims whatsoever of the

Petitioner/Transferor Company and its entire undertakings together with

all the rights and obligations relating thereto in the Petitioner/Transferee

Company on the terms and conditions as stated in the Scheme of

Amalgamation. The Scheme will enable these companies engaged in the

similar businesses, to provide for education counseling and related

services to Indian students aspiring to study in international universities.

It is further claimed that the said Scheme will enable the pooling of the

resources of the Transferor and the Transferee Companies to their

common advantage. The Scheme will result in reduction in overheads

and other expenses and better and more productive utilization of various

resources. It is further claimed that the proposed Amalgamation will

provide a stronger and consolidated financial structure to the businesses

of the Petitioner Companies. The Scheme will have beneficial results for

the two companies concerned, their shareholders, employees, creditors

and all concerned. It is further claimed that in the circumstances, it is

considered desirable and expedient to merge the Petitioner/Transferor

Company into the Transferee Company in the manner and on the terms

and conditions stated in the said Scheme of Amalgamation.

9. So far as the exchange ratio is concerned, the Scheme provides that

the Petitioner/Transferee Company without further application, on such

date as may be determined as the Record Date for such purpose by the

Board of Directors of the Transferee Company, issue and allot to the

Equity Shareholders of the Transferor Company and/or their Nominees

in the following ratio:-

"1.7 Equity shares of the nominal value of INR 10 each at

par in the Transferee Company, credited as fully paid up,

for every 1 Equity Shares of the nominal value of INR 10

each fully paid up held by them in the transferor

Company."

10 It has been submitted by the Petitioner that no investigation

proceedings under Sections 235 to 251 of the Companies Act, 1956 are

pending against the Transferor and Transferee Companies.

11. The Board of Directors of the Transferor Company and the

Transferee Company in their meetings held on 16.01.2012 respectively

has unanimously approved the proposed Scheme of Amalgamation.

Copies of the Resolutions passed at the meetings of the Board of

Directors of the Transferor Company and the Transferee Company have

been placed on record.

12. The Petitioner Companies had earlier filed CA (M) No. 30 of

2012 seeking the directions of this Court to dispense with the

requirement of convening the meetings of Equity Shareholders and the

Unsecured Creditors of the Transferor Company and the Transferee

Company. Vide order dated 15.03.2012, this court allowed the

application and dispensed with the requirement of convening and

holding the meetings of Equity shareholders and the Unsecured

Creditors of the Transferor Company and the Transferee Company to

consider and, if thought fit, approve, with or without modification, the

proposed Scheme of Amalgamation.

13. The Petitioner Companies have thereafter filed the present

petition seeking sanction of the Scheme of Amalgamation. Vide order

dated 20.03.2012, it was directed to issue notice to the Regional

Director, Northern Region, Ministry of Corporate Affairs and the

Official Liquidator. It was further directed that a copy of the present

petition to be served on the Registrar of Companies. Notice of hearing

of the petition was directed to be published in ' Indian Express' (English)

and 'Veer Arjun' (Hindi) in accordance with Rule 80 of the Companies

(Court) Rules, 1959. An affidavit has been filed by the Petitioner

showing compliance regarding publication of notice of hearing of the

petition in the aforesaid newspapers on 10.04.2012. Copies of the

newspaper clippings containing the publications have been filed along

with the affidavit.

14. An affidavit has been filed by the Petitioner Companies on

27.06.2012 stating that pursuant to the filing of the notice of hearing of

Petition in the newspapers, the Petitioners have not received any

objection from any person with respect to the Scheme of Amalgamation

between Study Overseas India Private Limited with Study Overseas

Global Private Limited.

15. Pursuant to the notices issued, the Official Liquidator, Mr. S. B.

Gautam has filed his report dated 22.05.2012 wherein he has stated that

he has not received any complaint against the proposed Scheme of

Amalgamation.

16 In response to the notices issued in the petition, Mr. B.K. Bansal,

Regional Director, Northern Region, Ministry of Corporate Affairs has

filed his report on 1st May, 2012. Relying on Clause 10.1 of Part III of

the Scheme of Amalgamation, he has stated that, upon sanction of the

Scheme of Amalgamation, all the permanent employees of the

Transferor Company shall become the employees of the Transferee

Company without any break or interruption in their services. Further, the

Regional Director has mentioned that para 8.2 of Clause 3 of the

Scheme provides for the accounting treatment in detail which is in

accordance with Accounting Standard-14 issued by the Institute of

Chartered Accountants of India and that the Central Government has no

objection to the proposed Scheme of Amalgamation.

17 In view of the consent accorded by the Equity Shareholders and

Unsecured creditors of the Transferor Company and the Transferee

Company and the Regional Director, Northern Region, 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 Section 391 and 394 of the Companies Act,

1956. The Petitioner Companies will comply with the statutory

requirements in accordance with law. It is also clarified that this order

will not be construed as an order granting exemption from payment of

stamp duty as payable in accordance with law. Upon the sanction

becoming effective from the appointed date of Amalgamation, i.e. 1 st

April, 2010 the Transferor Company shall stand dissolved without

undergoing the process of winding up. It is, however, clarified that this

order will not be construed as an order granting exemption from

payment of stamp duty or 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.

18 The Petitioner Companies shall file the Schedule of Assets of the

transferee company within one week from today.

19    The petition is allowed in the above terms.

20    At this stage, the petitioner company states that it shall voluntary

deposit a sum of Rs. 1 lac with the common pool fund of the Official

Liquidator within three weeks from today to enable the Liquidator to

meet the necessary expenses including Government fee. This statement

is accepted.

22    Dasti.

                                               INDERMEET KAUR, J

July 2, 2012
A