Sanskriti Infracon Private ... vs .....
2014 Latest Caselaw 2339 Del

$~15
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    CO.PET. 1/2014 and CO.APPL. (M) No.130/2013


      SANSKRITI INFRACON PRIVATE LIMITED & ANR...
                                                  Petitioner
                    Through: Mr.Rajiv Tyagi and Mr.Ajay
                             Kumar, Advocates
                             Mr.Atma Sah, Asstt.ROC
                             Mr.Rajiv Behl, Official Liquidator.


      CORAM:
      HON'BLE MR. JUSTICE SANJEEV SACHDEVA
                   ORDER

      %            08.05.2014


      SANJEEV SACHDEVA, J (ORAL)

1. This joint Second motion Petition has been filed under Sections 391 & 394 of the Companies Act, 1956 by the Petitioner Companies seeking sanction to the Scheme of Amalgamation of Sanskriti Infracon Private Limited with Earthcon Universal Infratech Private Limited. A copy of the Scheme is filed along with the Petition.

2. The Registered Offices of both the Petitioner Companies are situated at New Delhi, within the jurisdiction of this Court.

3. The details of respective dates of incorporation of the Petitioner Companies, their authorized, issued, subscribed and paid up capital have been set out in the Petition.

4. The copies of Memorandum and Articles of Association of the Petitioner Companies have been enclosed with the Petition.

5. The copies of resolutions passed by the Board of Directors of the Petitioners Companies approving the Scheme have also been filed along with the Petition.

6. Learned Counsel for the Petitioner Companies submits that no proceedings under Sections 235 to 251 of the Companies Act, 1956 are pending against the Petitioner Companies.

7. The Petitioner Companies had earlier filed Company Application (Main) No. 130 of 2013 seeking directions of this Court for dispensation/Convening of meetings. By order dated 27th September, 2013, this Court allowed the Application and the requirement of convening meetings of Shareholders and Secured Creditors of the Transferor Company; and the meetings of Shareholders and Secured Creditors of the Transferee Company; were dispensed with. This Court further directed for convening of separate meetings of Un-secured Creditors of the Transferor Company and the Transferee Company under its supervision to consider and approve the proposed Scheme of Amalgamation. The Scheme of Amalgamation was unanimously approved and adopted in the meetings of Un-secured Creditors of the Transferor Company and the Transferee Company.

8. The Petitioner Companies had thereafter filed the present Petition seeking sanction to the Scheme of Amalgamation. By Order dated 03.01.20, notice of the Petition was directed to be issued to the Registrar of Companies, Central Government through the Regional Director, Northern Region, Ministry of Corporate Affairs, Noida and the Official Liquidator attached with this Court. Citations

were also directed to be published in „Business Standard‟ (English, Delhi Edition) and „Dainik Bhaskar‟ (Hindi, Delhi Edition). Affidavit of Service and Publication has been filed by the Petitioners showing compliance regarding service of the Petition on the ROC, RD and OL, and also regarding publication of citations in the aforesaid newspapers. Copies of the newspaper cuttings, in original, containing the publications have also been filed along with the Affidavit of Service.

9. Pursuant to the notice issued, the Official Liquidator sought information from the Petitioner Companies. Based on the information received, Official Liquidator has filed his report dated 15.04.2014, wherein he has stated that he has not received any complainant against the proposed Scheme from any person/party interested in the Scheme in any manner and that the affairs of the Transferor Company, which is subject matter of dissolution, do not appear to have been conducted in a manner prejudicial to the interest of its members, creditors or to public interest. The Official Liquidator has also pointed out that the Petitioner Companies by the Board Resolution dated 19.03.2014 have amended the Paragraph 12.2 of the Scheme of Amalgamation providing for the occurring of the effective date on or before 21.10.2014 in substitution of 31.10.2013 mentioned in the draft Scheme filed alongwith the First Motion.

10. It has been stated in the report that the Official Liquidator has not received any complaint against the proposed Scheme of Amalgamation. It is further stated that affairs of the Petitioners

Company do not appear to have been conducted in a manner prejudicial to the interest of its members or to public interest as per the second proviso to Section 394(1) of the Act. The Official Liquidator has made the following observations :

a. That it is observed that the Share Valuation Report for the proposed amalgamation was prepared by "M/s Hemant Gosain & Associates for the Transferor Company and by M/s Deepak Gulati & Associates, Chartered Accountants for the Transferee Company". The valuation report by M/s Hemant Gosain & Associates is undated while the valuation report by M/s Deepak Gulati & Associates for the Transferee Company is dated as 23.05.2013. However, the Board of the Petitioner companies approved the draft scheme on 01/04/2013. Petitioner companies may be asked to clarify the same as the modalities/procedure followed by them appears to be improper.

b. That as per Para 25 of the petition, the Transferee Company shall allot equity shares as set out in the Share Valuation Report dated 25.08.2013 submitted by M/s Deepak Gulati & Associates, Chartered Accountants. But, the share valuation report by M/s Deepak Gulati & Associates is dated 23.05.2013 which does not indicate how the share exchange ratio i.e. 127:100 has been arrived at. Further, as per Para 6.2 in Part C of the affidavit attached to Application C.A. 130/2013, Share

Exchange Ratio is 1:1 and as per the Scheme, the share exchange ratio is 127:100. Petitioner Companies may be asked to clarify the above discrepancies. c. That Para 17 of the affidavit to the Application C.A.

130/2013 is as follows:

"Upon sanction of the scheme, the Transferee Company shall allot Equity Shares of Rs. 10/- each fully paid up to the shareholders of the Transferor Company as per the share exchange ratio set out in the Share Valuation Report dated Nil issued by M/s Deepak Gulati & Associates, Chartered Accountants. The Share Valuation report dated Nil, issued by M/s. Hemant Gosain & Associates, Chartered Accountants. It is observed that the above Para is not correct as the share exchange ration is not derived in the Share Exchange Report submitted by M/s Deepak Gulati & Associates. Further, the report is dated as 23/05/2013 and the report of M/s. Hemant Gosain & Associates is undated."

11. In response to the aforesaid observations the Petitioner/ Transferor Company in reply wide reply affidavit dated 30.04.2014 has submitted that :

"M/s. Hemant Gosain &Associates, Chartered Accountants for the Transferor Company and M/s. Deepak Gulati & Associates, Chartered Accountants for the Transferee Company have submitted the respective valuation reports evaluating the shares of the Transferor Company and the Transferee Company. In this regard the Affidavit on behalf of

M/s. Hemant Gosain & Associates, Chartered Accountants for the Transferor Company and M/s. Deepak Gulati & Associates, Chartered Accountants for the Transferee Company are annexed herewith as Annexure 8 and Annexure C respectively."

"........all the group companies including Transferor Company and the Transferee Company maintain their accounts electronically and at any given point of time the up to date accounts are available. I say that accordingly on 31.03. 2013 the information relating to the assets and liabilities of the Transferor Company was available based on which M/s. Hemant Gosain & Associates, Charted Accountants have worked out the valuation of shares. Subsequently upon completion of the Audit of the accounts they have submitted the detailed valuation report based on which the Board of the Transferor Company I Applicant No. 1 M/s. Sanskriti lnfracon Private Limited approved the Draft Scheme on 01.04.2013."

".......as per the valuation given by M/s. Hemant Gosain & Associates, Chartered Accountants, the value of the shares of the Transferor Company as per the Net Asset Value method has been valued at Rs. 8. Similarly M/s. Deepak Gulati & Associates, Chartered Accountants have valued the shares of the Transferee Company at Rs. 6.34 per share by the Net Asset to Book Value method. By working out the proportionate values i.e. 8 : 6.34 = 1.2618 : 1 or say 1.27 : 1,

the share exchange ratio of 127 shares for every 100 has been arrived at. I say that share exchange ratio given in para 6.2 in para C of the Affidavit attached to Company Application No. 130 of 2013 is meant to convey that the share exchange ratio has been worked out on the basis of the Share Value Report given by M/s. Deepak Gulati & Associates, Chartered Accountants and M/s. Hemant Gosain & Associates, Chartered Accountants. The exchange ratio has been worked out by the Transferor Company and Transferee Company based on the professional valuation."

12. Learned Counsel for the Petitioner has submitted that the Scheme correctly records the share exchange Ratio as 127:100 but on account of a typographical error the same has been mentioned as 1:1 in the affidavit.

13. In response to the notice issued in the Petition, Regional Director, Northern Region, Ministry of Corporate Affairs has filed his Affidavit/Report dated 16.04.2014. Relying on the Scheme of Amalgamation, he has stated that, upon sanction of the Scheme, all the employees of the Transferor Company shall become the employees of the Transferee Company without any break or interruption in their services.

14. The Regional Director has made the following observations :

a. .....that the Appointed Date as per the Scheme shall be 01.04.2012. Since, the Financial Year ended 31.03.2013

is already completed, it is submitted that Appointed Date may be shifted to 01.04.2013 to avoid any revision of Balance Sheet and Profit & Loss Account & other returns including Tax Returns.

b. .....the Registrar of Companies, Delhi has reported that the Petitioner Transferor Company has not filed its Annual Return and Balance Sheet as at 31.03.2013 and the Petitioner Transferee Company has also not filed its Balance Sheet as at 31.03.2013 with the Registrar of companies.

15. In response to the aforesaid observations, the Petitioner Transferee Company in the Reply Affidavit dated 30th April, 2014, has submitted that Clause 2.1.3 of the draft Scheme has been amended to define the Appointed Date as 1st April, 2013 instead of April 1, 2012. The Petitioner Transferee Company has filed the Board Resolution dated 26.4.2014 in this regard. By the Board Resolution dated 19.3.2014, the Transferee Company had amended paragraph 12.2 of the Scheme of Amalgamation to provide the last effective date i.e. October, 2014.

16. Mr. Rajiv Tyagi, learned Counsel for the Petitioner Companies has prayed that this Hon‟ble Court may direct change of the Appointed Date to 1st April, 2013 or such other date as it may deem fit. The Petitioners have confirmed that they are agreeable to any such date in the Appointed Date. In view of the aforesaid clarification, I deem it fit to change the Appointed Date to 1st April, 2013. It has been submitted by the Petitioner Companies that they maintain their

account electronically and the financial statements as on 31.03.2013 were available on that very date for the purpose of computing the value of the shares. The valuation of shares has been done as on 31.03.2013 and the same was considered by the board of the Petitioner Companies on 01.04.2013 and approved on that date. It is further submitted that the Annual Return in the Balance Sheets as on 31.03.2013 have been filed along with Additional fees and the Proof of filing has also been filed along with the Affidavit.

17. In view of the above the issues raised by the OL and the RD are addressed.

18. No objection has been received to the Scheme of Amalgamation from any other party. The petitioner Companies in Affidavit dated 28.02.2014 have confirmed that neither Petitioner Companies nor their Counsel have received any objection pursuant to citations published in the newspapers.

19. 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.

20. A certified copy of the formal 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, all 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, 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.

21. It is, however, clarified that this Order will not be construed as an Order granting exemption from payment of stamp duty 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.

22. The Petitioner Companies voluntarily states that they would collectively deposit a sum of Rs. 50,000 to the common pool fund of Official Liquidator within three weeks from today. The statement is accepted.

23. The Petition is allowed in the above terms.

SANJEEV SACHDEVA, J MAY 08, 2014/sv