Delhi High Court
Hespera Real Estate Private ... vs .............. on 22 December, 2014
$~37
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Co. Appl. (M) No. 173/2014
IN THE MATTER OF
HESPERA REAL ESTATE PRIVATE LIMITED
......Applicants
Through: Mr. N.P.S Chawla and Mr.
Gaurav Varma, Advocate for the
Applicant Companies.
CORA M:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 22.12.2014
SANJEEV SACHDEVA, J (ORAL)
1. This is a first motion joint A pplication under Sections
391 and 394 of the Companies Act, 1956 ("Act") in
connection with the Composite Scheme of
Arrangement ("Scheme") between Hespera Real Estate
Limited (hereinafter referred to as Transferor Company
No. 1), Hespera Infrastructure Private Limited
(hereinafter referred to as Transferor Company No. 2),
Hespera Properties Private Limited (hereinafter
referred to as Transferor Company No. 3) Hespera
Realcon Private Limited (hereinafter referred to as
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Amalgamating Company No. 1) and Hespera
Construction Private Limited (hereinafter referred to as
Amalgamating Company No. 2) with Hespera Realty
Private Limited (hereinafter referred to as Transferee
Company) (hereinafter collectively referred to as
Applicant Companies). A copy of the proposed Scheme
has been enclosed along with the Application.
2. The Scheme is divided into two parts and involves:
Fi rst Part
(i) Amalgamation of Hespera Real Estate Private
Limited or Transferor Company No. l/First Applicant
Company with Hespera Realcon Private Limited or
Amalgamating Company No. l/Fourth Applicant
Company; and
(ii) Amalgamation of Hespera Infrastructure Private
Limited or Transferor Company No.2/Second
Applicant Company and Hespera Properties Private
Limited or Transferor Company No.3/Third Applicant
Company with Hespera Realty Private Limited or
Transferee or Amalgamated Company/ Sixth Applicant
Company.
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Second Part
(iii) Amalgamation of Hespera Realcon Private Limited
or Amalgamating Company No. l /Fourth Applicant
Company and Hespera Constructions Private Limited
or Amalgamating Company No.2/Fifth Applicant
Company with Hespera Realty Private Limited or
Transferee or Amalgamated Company/Sixth Applicant
Company
The diagrammatic representation depicting the
proposed amalgamation of Applicant Companies is as
follows:
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3. The registered offices of the Applicant Companies are
situated within the National Capital Territory of Delhi
and are within the jurisdiction of this Court.
4. The details with regard to the date of incorporation of
Applicant Companies, their Authorized, Issued,
Subscribed and Paid up Capital have been set out in the
present application.
5. Copies of the Memorandum and Articles of
Association as well as the latest audited Annual
Accounts for the year ended 31 st March, 2014 of the
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Applicant Companies have also been enclosed with the
present Application.
6. Learned Counsel for the Applicant Companies submits
that no proceeding under sections 235 to 251 of the Act
is pending against any of the Applicant Companies as
on the date of the present Application.
7. Learned Counsel for Applicant Companies further
submits that the valuation report for determining the
share exchange ratio has not been placed on record and
that the present Scheme involves amalgamation of
closely held companies and as a reason thereof the
shareholding of the ultimate parent entity (i.e. Maritime
India Trust) does not get affected.
8. It is further submitted that the beneficial interest will
continue to remain with the parent entity, either pre or
post sanctioning of the S cheme and accordingly, it does
not matter whatever number of shares are issued as
consideration for the Scheme to the ultimate parent
entity.
====================================================
9. In view of the above, the Board of Directors of the
applicant companies have decided to fix lump sum
consideration of Rs.100,000 (Rupees One Lakh only)
each for amalgamation of Amalgamating Company
No. 1 with Amalgamated Company and for
amalgamation of Amalgamating Company No. 2 with
Transferee Company, totaling to Rs.2,00,000 (Rupee
Two Lakh only), for the transfer and vesting of the
assets and liabilities of Amalgamating Company No. 1
and Amalgamating Company No. 2 with
Amalgamated/Transferee Company, which shall be
discharged by the Amalgamated/ Transferee Company
through the issue of 20,000 equity shares of the
Transferee Company, having face value of Rs.10
(Rupees Ten only) each credited as fully paid -up to the
Maritime India Trust. As far as the consideration for
merger of the wholly owned subsidiaries (Transferor
Companies) with their respective parent companies,
there is no requirement to issue shares as entire paid -up
share capital of these wholly owned subsidiaries are
held by their respective parent companies which shall
post sanction of the present scheme shall stand
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cancelled and extinguished. It is these circumstances
submitted that there is no necessity to obtain any
valuation report for the Scheme.
10. Learned Counsel of the Applicant Companies has
placed reliance on the order of this High Court passed
in the case of F ORTIS H EALTH M ANAGEMENT (N ORTH)
L IMITED & A NR dated 22.07.2013, wherein it is held as
under:
"5.1.it is submitted that both the petitioner
companies has not submitted the valuation
report prepared by the firm of Chartered
Accountants, as such, the Petitioner
Companies may be directed to obtain the
valuation report from a recognized firm of
Chartered Accountants."
13. the Petitioner companies by way of their
reply to the affidavit of the RD dated 26 th
July, 2013 has stated that the present
scheme, the transferor company and the
transferee company are wholly owned
subsidiaries of Fortis Healthcare Limited
====================================================
(„Parent Company‟) and the beneficial
interest of the Transferor Company and the
Transferee Company would continue to
remain with the parent company (either
before or after the approval of the Scheme
of the Transferor company with the
Transferee Company), hence it is
immaterial for the Parent company whether
it is issued more or less number of shares in
the Transferee Company. It was also stated
that the intrinsic worth of the investment
made by the Parent Company in the
Transferor Company and the Transferee
Company would remain same both before
and after the sanction of the scheme. It is
further submitted that the present scheme,
from the perspective of the parent company,
is nothing but consolidation of two parallel
entities into one single entity by following
the principles of line to line merger by
pooling of interest method with no
consequential change in the value of the
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investments made by the parent company in
the transferor company and the transferee
company.
14. Further, the counsel for the petitioner
companies submitted that, considering the
reservation of the RD, the petitioner
Companies have obtained a certificates
from an independent chartered accountant -
M/s Ritu Gupta % Co., Chartered
Accountant which confirms that there is no
requirement for determining a share
exchange ratio for issuance of shares to the
shareholders of the Transferor Company by
the Transferee Company.
15. In view of the above reply of the petitioner
Companies, the observations of the RD no
longer survive".
11. The proposed Scheme has been approved by the Board
of Directors of all the Applicant Companies. Copies of
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the Board Resolutions have been filed along with the
present Application.
12. The status of the Shareholders, Shareholders , Secured
and Unsecured Creditors of the Applicant Companies is
apparent from the chart given below: -
Company Share- Consent Secured Consent Unsecured Consent
holders Given Creditors Given Creditors Given
Transferor 2 All Nil N.A Nil N.A
Company No.1
Transferor 2 All Nil N.A 1 All
Company No.2
Amalgamating 2 All Nil N.A 1 All
Company No1
Amalgamating 2 All Nil N.A 1 All
Company No2
Transferee 2 All Nil N.A 1 All
Company
13. In view of the above, a prayer has been made for
dispensation of the requirement of convening meetings
of Shareholders, Secured Creditors and Unsecured
Creditors of the Applicant Companies.
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14. In view of the written consent/NOC given by all the
Shareholders of the Applicant Companies, the
requirement of convening meeting of the Shareholders
of the Applicant Companies is dispensed with.
15. Since there are no Secured Creditors in the Applicant
Companies, the requirement for convening meetings of
the Secured Creditors of the Applicant Companies does
not arise.
16. Since there are no Unsecured Creditors in the
Transferor Company No. 1, the requirement for
convening meetings of the Unsecured Creditors of
Transferor Company No. 1 the does not arise.
17. In view of the written consent/NOC given by all the
Unsecured Creditor of the Transferor Company No. 2,
Amalgamating Company No. 1, Amalgamating
Company No. 2 and Transferee Company, the
requirement of convening meeting of Unsecured
Creditor of the Transferor Company No. 2,
Amalgamating Company No. 1, Amalgamating
Company No. 2 and Transferee Company are dispensed
with.
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18. The Application is allowed in the aforesaid terms.
Order Dasti.
SANJEEV SACHDEVA, J
DECEMBER 22, 2014/st
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