Spank Hotels Private Limited vs -------------
2012 Latest Caselaw 6512 Del

22
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Date of Judgment:07.11.2012

+            COMPANY PETITION NO. 325 OF 2012


In the matter of
The Companies Act, 1956

And

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

Scheme of Amalgamation of

SPANK HOTELS PRIVATE LIMITED
                     .......... Transferor Company
AND

LEMON TREE HOTELS LIMITED
(formerly known as Lemon Tree Hotels
Private Limited)           .................Transferee Company

                            Through Mr. Mukesh Sukhija, Advocate
                            for the Petitioners.
                            Mr. K.S. Pradhan, Deputy Registrar of
                            Companies for the Regional Director.
                            Mr.Rajiv Bahl, Advocate for the Official
                            Liquidator.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR
C.P.No325/2012                                          Page 1 of 9
 INDERMEET KAUR, J. (Oral)

1. This joint Petition has been filed under sections 391(2) & 394 of

the Companies Act, 1956 by the Petitioner Transferor Company and

Transferee Company seeking sanction of the Scheme of Amalgamation

of SPANK HOTELS PRIVATE LIMITED (Transferor Company); with

Lemon Tree Hotels Limited (Transferee Company).

2. The registered offices of the Petitioner Transferor Company 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

Company and Transferee Company, 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 Accounts as at 31st March, 2011 of the Petitioner

Transferor Company and Transferee Company 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 Share Exchange ratio is concerned, the Scheme

provides that upon amalgamation of the „Transferor Company into the

„Transferee Company‟ pursuant to the Scheme of Amalgamation, the

following would be the share Exchange Ratio:

"FOR EVERY 1 (ONE) EQUITY SHARE OF RE. 1 (RUPEES ONE) EACH FULLY PAID UP OF SPANK HOTELS PRIVATE LIMITED (TRANSFEROR COMPANY) 2 (TWO) EQUITY SHARE(S) OF RS. 10 (RUPEES TEN) EACH FULLY PAID UP OF LEMON TREE HOTELS LIMITED (TRANSFEREE COMPANY)."

8. The Petitioner Companies had earlier filed CA (M) No. 109

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

Vide order dated July 2, 2012, this Court allowed the Application and

dispensed with the requirement of convening meetings of Shareholders,

Secured Creditors and Un-secured Creditors of the Transferor Company

and the Transferee Company.

9. The Petitioner Transferor Company and the Transferee Company

have thereafter filed the present Petition seeking sanction of the Scheme

of Amalgamation. Vide order dated July 20, 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

the „Statesman‟ (English, Delhi Edition) and „Vir Arjun‟ (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

August 20, 2012. Copies of the newspaper 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 02.11.2012

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 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. Rakesh

Chandra, Learned Regional Director, Northern Region, Ministry of

Corporate Affairs has filed his Affidavit dated 19th October, 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 Company 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. In para 5.1 of affidavit the Regional Director has submitted that

para 2 (n) of the Scheme which is as follows:

"Provided always that this Scheme shall not operate to enlarge the security for any loan, deposit or facility created by the Transferor Company which shall vest in the Transferee Company by virtue of the amalgamation of the Transferor Company with the Transferee Company and the Transferee Company shall not be obliged to

create any further or additional security therefore after the scheme has become operative."

is against the basic principle of the Scheme of Amalgamation, where all

liabilities are transferred to the Transferee Company and as such this

clause may not be allowed.

13. In response to this Submission made by Ld. Regional Director in

Para 5.1 of the Affidavit Ms. Suman Singh, authorised signatory of the

petitioner Companies, filed an affidavit dated 03.11.2012 stating that

para No. 2(n) of the Proposed Scheme of Amalgamation only states that

this scheme shall not operate to enlarge or enhance any existing security

for the loan or facility created by the Transferor Company and the

security provided by the transferor Company for the loans or facility

taken/availed before coming into effect of this Scheme of

Amalgamation would continue to be the security for said loans or

facility which would be transferred to the Transferee Company pursuant

to this Scheme of amalgamation. It implies that no further assets of the

Transferee Company or the assets of the Transferor Company

transferred to the Transferee Company would be available as security

for the loans or facility created by the Transferor Company.

14. However, at this stage the learned counsel for the petitioner

submits that he would delete Para 2(n) from the Scheme which is

accordingly ordered. Additional affidavit to this effect as also the

amended Scheme is taken on record.

15. The Authorised Signatory Ms. Suman Singh has also filed an

additional affidavit stating therein that the Transferee Company has

increased its paid up capital and subsequently the Scheme of

amalgamation has been amended pursuant to the provisions of the

Clause 13(a) of the Scheme. Copy of the Resolutions of the Board of

Directors of the Petitioner Companies have also been placed on record.

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

from any other party. Ms Suman Singh authorised signatory for the

Petitioner Companies, has filed an affidavit dated 03.11.2012

confirming that neither the Petitioner Companies nor the counsel for the

petitioner Companies has received any objection pursuant to citations

published in the newspapers.

17. 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 Company 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 Company be

transferred to the Transferee Company without any further act or deed.

Upon the Scheme coming into effect, the Transferor Company 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.

18. Learned Counsel for the Petitioners states that the Petitioner

Companies would voluntarily deposit a sum of Rs.1,00,000/- in the

Common Pool fund of the Official Liquidator within three weeks from

today. The statement is accepted.

19. The Petition is allowed in the above terms.

Order Dasti.

INDERMEET KAUR, J

NOVEMBER 07, 2012 nandan