M/S Cdh Bioscience Private ... vs ----
2012 Latest Caselaw 4265 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Date of Judgment:19.7.2012

+                         CO. PET. 140/2012


      M/S CDH BIOSCIENCE PRIVATE LIMITED & ORS.
                                                   ........ Petitioners
             Through: Mr. Amit Goel, Advocate, Advocate for
             petitioners.
             Mr. Rajiv Behl, Advocate for the Official Liquidator.
             Mr. K. S. Pradhan, Deputy Registrar of Companies for
             Regional Director, Northern Region.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

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

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

seeking sanction of the Scheme of Amalgamation (for short

"Scheme") of CDH BIOSCIENCE PRIVATE LIMITED

(Transferor Company No.1) and EX SERVICEMEN

ABHIMANYU COAL CARRIERS PRIVATE LIMITED

(Transferor Company No. 2) with CENTRAL DRUG HOUSE

PRIVATE LIMITED (Transferee Company).

2. The registered offices of the Transferor and Transferee

Companies 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 31st March,

2011 of the Transferor and Transferee Companies have also been

enclosed with the Petition.

5. Copies of the Resolutions passed by the Board of Directors of

the Transferor and Transferee Companies approving the Scheme

have also been placed on record.

6. It has been submitted that no proceeding under Sections 235 to

251 of the Act is pending against the Petitioner Companies.

7. So far as the share exchange ratio for Scheme of Amalgamation

is concerned, the Scheme provides that, upon the Scheme finally

coming into effect, the Transferee Company shall issue shares in

the following manner:-

7 equity shares of Rs. 100/- each credited as fully paid for every

1 equity share of Rs. 10/- each fully paid held by the shareholders

144 equity shares of Rs. 100/- each credited as fully paid for

every 1 equity share of Rs. 100/- each fully paid held by the

The Share Valuation Report certifying the Fair Exchange Ratio

of the Equity Shares for the merger of the Petitioner Companies

has also been placed on record.

8. The Petitioner Companies had earlier filed CA(M) No. 44 of

2012 seeking directions of this Court for dispensation of

meetings. Vide order dated 16th March, 2012, this Court allowed

the Application and dispensed with the requirement of convening

meetings of Shareholders of the Transferor and Transferee

Companies, Unsecured Creditors of Transferor Company No. 1

and Secured as well as Un-secured Creditors of the Transferee

Company. Since there was no Secured Creditor in Transferor

Company No. 1 and no Secured or Un-secured Creditor in the

Transferor Company No. 2, the question of their meetings did not

arise.

9. The Petitioner Companies have thereafter filed the present

Petition seeking sanction of the Scheme. Vide order dated 28 th

March, 2012 notice of the Petition was directed to be issued to

the Regional Director, Northern Region and the Official

Liquidator. Notice was duly accepted on behalf of the Regional

Director and the Official Liquidator. Citations were also directed

to be published in "Financial Express" (English, Delhi Edition)

and "Dainik Jagran" (Hindi, Delhi Edition). Affidavits of

Publication have been filed by the Petitioners showing

compliance regarding publication of citations in the aforesaid

newspapers on 05.07.2012. Copies of the newspapers cuttings, in

original, containing the publications have been filed along with

the Affidavit of Publication.

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 18.07.2012 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 Company No. 1 & 2 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, Regional Director, Northern Region, Ministry of

Corporate Affairs has filed his Affidavit dated 16.07.2012.

Relying on Clause 9.2 of the Scheme, he has stated that all the

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 Court.

12. No objection has been received to the Scheme from any other

party. Learned counsel for Petitioner Companies has submitted

that the Petitioner Companies have filed affidavit of Mr. Shankar

Lal Aggarwal, Director of Transferee Company dated

16.07.2012 confirming that neither the Petitioner Companies nor

their counsel has received any objection pursuant to citations

published in the newspapers. The same is taken on record.

13. Even today, Mr. K. S. Pradhan, Deputy Registrar of Companies

appearing for Regional Director, Northern Region and Mr. Rajiv

Behl, learned counsel for Official Liquidator state that they have

no objection to the present Scheme being sanctioned.

14. In view of the approval accorded by the Shareholders of the

Petitioner Companies, Unsecured Creditors of Transferor

Company No. 1 and Secured as well as Un-secured Creditors of

the Transferee Company and there being no Secured Creditor in

Transferor Company No. 1 and no Secured or Un-secured

Creditor in the Transferor Company No. 2; affidavit/report filed

by the Regional Director, Northern Region and the Official

Liquidator, attached with this Court to the proposed Scheme,

there appears to be no impediment to the grant of sanction to the

Scheme. Consequently, sanction is hereby granted to the Scheme

under Sections 391 and 394 of the Act. 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 Act and in

terms of the Scheme, the whole or part of the undertaking, the

properties, 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.

15. Learned counsel for the Petitioner 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 said statement is accepted.

16. The Petition is allowed in the above terms.

Order dasti.

INDERMEET KAUR, J JULY 19, 2012 nandan