Alessa Developers & ... vs -----
2012 Latest Caselaw 4133 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Date of Judgment:13.07.2012

+                      CO.PET. 77/2012


Petition under Sections 391(2) & 394 of the Companies Act, 1956



ALESSA DEVELOPERS & INFRASTRUCTURES PRIVATE
LIMITED
                          ..... FIRST PETITIONER /
                      TRANSFEROR COMPANY No.1

ARN BUILDCON PRIVATE LIMITED   ....SECOND PETITIONER
                         /TRANSFEROR COMPANY No.2

EMERALD CONBUILD PRIVATE LIMITED
                              ...THIRD PETITIONER /
                          TRANSFEROR COMPANY NO.3


SARNAFIL SECURITIES PRIVATE LIMITED
                                         ....FOURTH PETITIONER /
                                         TRANSFEROR COMPANY No.4
SANTRIC SECURITIES PRIVATE LIMITED
                                        ....FIFTH PETITIONER /
                                      TRANSFEROR COMPANY No.5
SUKU INFOTECH PRIVATE LIMITED
                                       ...SIXTH PETITIONER /
                                    TRANSFEROR COMPANY No.6

C.P.No.77/2012                                           Page 1 of 9
 SANLUIS INFRATECH PRIVATE LIMITED
                      ...SEVENTH PETITIONER /
                        TRANSFEROR COMPANY No.7
                                 AND

AAKRITI STRUCTURES PRIVATE LIMITED
                       ... EIGHTH PETITIONER /
                       TRANSFEREE COMPANY

                   Through:    Mr. Manoj Kumar Garg & Mr. Animesh
                               K. Sinha, Advocate for the Petitioners

                               Mr. K.S. Pradhan, Deputy Registrar of
                               Companies, for the Regional Director
                               (Northern Region)

                               Mr. Rajiv Behl, Advocate for the
                               Official Liquidator

      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 by the Petitioner Transferor

Companies and Transferee Company seeking sanction of the Scheme of

Amalgamation of Transferor Companies No. 1 to 7 - Alessa Developers

& Infrastructures Private Limited, ARN Buildcon Private Limited,

Emerald Conbuild Private Limited, Sarnafil Securities Private Limited,

Santric Securities Private Limited, Suku Infotech Private Limited,

Sanluis Infratech Private Limited with Transferee Company Aakriti

Structures Private Limited.

2. The registered offices of the Petitioner Transferor Companies

and Transferee Company 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 31 st March,

2011 of the Petitioners Transferor and Transferee 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. 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:

 1 Equity Share of Rs. 10/- each, credited as fully paid-up, of the Transferee Company for every 1.36 Equity Share of Rs. 10/- each held in the Transferor Company No. 1.

 1 Equity Share of Rs. 10/- each, credited as fully paid-up, of the Transferee Company for every 1.27 Equity Share of Rs. 10/- each held in the Transferor Company No. 2.

 0.89 Equity Share of Rs. 10/- each, credited as fully paid-up, of the Transferee Company for every 1 Equity Share of Rs. 10/- each held in the Transferor Company No. 3.

 1 Equity Share of Rs. 10/- each, credited as fully paid-up, of the Transferee Company for every 1.15 Equity Share of Rs. 10/- each held in the Transferor Company No. 4.

 1 Equity Share of Rs. 10/- each, credited as fully paid-up, of the Transferee Company for every 1.17 Equity Share of Rs. 10/- each held in the Transferor Company No. 5.

 1.10 Equity Share of Rs. 10/- each, credited as fully paid-up, of the Transferee Company for every 1 Equity Share of Rs. 10/- each held in the Transferor Company No. 6.

 1 Equity Share of Rs. 10/- each, credited as fully paid-up, of the Transferee Company for every 1.53 Equity Share of Rs. 10/- each held in the Transferor Company No. 7.

8. The Petitioner Companies had earlier filed CA (M) No. 23 of

2012 seeking directions of this Court for dispensation/convening of

meetings. Vide order dated 06.02.2012, this Court allowed the

Application and dispensed with the requirement of convening meetings

of Shareholders of the Transferor Companies and the Transferee

Company. None of these Companies had any Secured and Un-secured

Creditors.

9. The Petitioner Transferor Companies and the Transferee

Company have thereafter filed the present Petition seeking sanction of

the Scheme of Amalgamation. Vide order dated 17.02.2012, 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 'Business Standard' (English, Delhi Edition) and 'Business

Standard' (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 on 05.03.2012. Copies of the newspapers' cuttings,

in original, containing the publications have been filed along with the

Affidavit of Service.

10. Pursuant to the notices issued, the Official Liquidator sought

information from the Petitioner Companies. Based on the information

received, the Official Liquidator has filed his report dated 29.06.2012

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 do not appear

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

members, creditors or to public interest.

11. In response to the notices issued in the Petition, Mr. B.K. Bansal,

Learned Regional Director, Northern Region, Ministry of Corporate

Affairs has filed his Affidavit/Report dated 28.06.2012.` Relying on

Clause 7 of the Scheme of Amalgamation, he has stated that, upon

sanction of the Scheme of Amalgamation, all the employees of 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 Amalgamation by the Hon'ble Court.

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

from any other party. Mr. Ankur Aggarwala, Authorized Representative

of Transferee Company and Mr. Manoj Kumar Garg, Learned Counsel

of the Petitioner Companies, have filed an affidavit dated 06.07.2012,

confirming that neither the Petitioner Companies nor their Legal

Counsel has received any objection pursuant to citations published in the

newspapers.

13. 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

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, and in terms of the Scheme , the

whole or part of the undertaking, the property, rights and powers of the

Transferor Companies be transferred to and vest in the Transferee

Company without any further act or deed. Similarly, in terms of the

Scheme, 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 taxes 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.

14. Learned Counsel for the Petitioners 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 statement is accepted.

15. The Petition is allowed in the above terms.

Order Dasti.

INDERMEET KAUR, J

JULY 13, 2012 nandan