Heritage Towers Private Limited vs ...
2015 Latest Caselaw 3022 Del

                    IN THE HIGH COURT OF DELHI
                  COMPANY PETITION NO. 733/2014

                                         Reserved on 17th March, 2015
                               Date of pronouncement: 16th April, 2015
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):

And

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

Scheme of Amalgamation of:

Heritage Towers Private Limited
                                      Petitioner/Transferor Company No. 1

Nipun Buildwell Private Limited
                                      Petitioner/Transferor Company No. 2

Samarth Buildwell Private Limited
                                      Petitioner/Transferor Company No. 3
      WITH

Pashupati Towers Private Limited
                                           Petitioner/Transferee Company

                                  Through Mr. Dilip Singh, Advocate for
                                  the petitioners
                                  Mr. Atma Sah, Assistant Registrar of
                                  Companies for the Regional Director
                                  Mr. Rajiv Bahl, Advocate for the
                                  Official Liquidator

SUDERSHAN KUMAR MISRA, J.

1. This joint petition has been filed under Sections 391(2) and 394 of

the Companies Act, 1956 by the petitioner companies seeking sanction

of the Scheme of Amalgamation of Heritage Towers Private Limited

(hereinafter referred to as the transferor company no. 1); Nipun Buildwell

Private Limited (hereinafter referred to as the transferor company no. 2);

and Samarth Buildwell Private Limited (hereinafter referred to as the

transferor company no. 3) with Pashupati Towers Private Limited

(hereinafter referred to as the transferee company).

2. The registered offices of the transferor and transferee companies

are situated at New Delhi, within the jurisdiction of this court.

3. The transferor company no. 1 was incorporated under the

Companies Act, 1956 on 19th March, 1999 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

4. The transferor company no. 2 was incorporated under the

Companies Act, 1956 on 15th January, 2003 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

5. The transferor company no. 3 was incorporated under the

Companies Act, 1956 on 15th January, 2003 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

6. The transferee company was incorporated under the Companies

Act, 1956 on 19th March, 1999 with the Registrar of Companies, NCT of

Delhi & Haryana at New Delhi.

7. The present authorized share capital of the transferor company

no.1 is Rs.5,00,000/- divided into 50,000 equity shares of Rs.10/- each.

The issued, subscribed and paid-up share capital of the company is

Rs.1,02,000/- divided into 10,200 equity shares of Rs.10/- each.

8. The present authorized share capital of the transferor company

no.2 is Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each.

The issued, subscribed and paid-up share capital of the company is

Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each.

9. The present authorized share capital of the transferor company

no.3 is Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each.

The issued, subscribed and paid-up share capital of the company is

Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each.

10. The present authorized share capital of the transferee company is

Rs.5,00,000/- divided into 50,000 equity shares of Rs.10/- each. The

issued, subscribed and paid-up share capital of the company is

Rs.1,02,000/- divided into 10,200 equity shares of Rs.10/- each.

11. Copies of the Memorandum and Articles of Association of the

transferor and transferee companies have been filed on record with the

joint application, being CA(M) 142/2014, earlier filed by the petitioners.

The audited balance sheets, as on 31st March, 2013, of the transferor

and transferee companies, along with the report of the auditors, had also

been filed.

12. A copy of the Scheme of Amalgamation has been placed on record

and the salient features of the Scheme have been incorporated and

detailed in the petition and the accompanying affidavit. It is claimed that

the proposed amalgamation would enable pooling of physical, financial

and human resources of these companies for the most beneficial

utilization of these factors in the combined entity. It is further claimed that

the proposed amalgamation will result in usual economies of a

centralized and a large company including elimination of duplicate work,

reduction in overheads, better and more productive utilization of human

and other resources and enhancement of overall business efficiency. It

will enable these companies to combine their managerial and operating

strength, to build a wider capital and financial base and to promote and

secure overall growth of their businesses.

13. So far as the share exchange ratio is concerned, the Scheme

provides that, upon coming into effect of this Scheme, the transferee

company shall issue and allot equity shares to the shareholders of the

transferor companies in the following ratio:

"148 equity shares of Rs.10/- each of the transferee company for every 100 equity shares of Rs.10/- each held in transferor company no. 1."

"49 equity shares of Rs.10/- each of the transferee company for every 100 equity shares of Rs.10/- each held in transferor company no. 2."

"09 equity shares of Rs.10/- each of the transferee company for every 100 equity shares of Rs.10/- each held in transferor company no. 3."

14. It has been submitted by the petitioners that no proceedings under

Sections 235 to 251 of the Companies Act, 1956 and Sections 210 to 227

of the Companies Act, 2013 are pending against the transferor and

transferee companies.

15. The Board of Directors of the transferor and transferee companies

in their separate meetings held on 18th August, 2014 have unanimously

approved the proposed Scheme of Amalgamation. Copies of the

Resolutions passed at the meetings of the Board of Directors of the

transferor and transferee companies had been placed on record in CA(M)

142/2014.

16. The petitioner companies had earlier filed CA (M) No. 142/2014

seeking directions of this court to dispense with the requirement of

convening the meetings of their equity shareholders, secured and

unsecured creditors, which are statutorily required for sanction of the

Scheme of Amalgamation. Vide order dated 14th October, 2014, this

court allowed the application and dispensed with the requirement of

convening and holding the meetings of the equity shareholders and

unsecured creditors of the transferor and transferee companies, there

being no secured creditors of the petitioner companies, to consider and, if

thought fit, approve, with or without modification, the proposed Scheme

of Amalgamation.

17. The petitioner companies have thereafter filed the present petition

seeking sanction of the Scheme of Amalgamation. Vide order dated 25th

November, 2014, 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 'Statesman' (English) and 'Jansatta'

(Hindi) editions. Affidavit of service has been filed by the petitioners

showing compliance regarding service on the Official Liquidator and the

Regional Director, Northern Region and also regarding publication of

citations in the aforesaid newspapers on 30th January, 2015. Copies of

the newspaper clippings containing the publications have been filed

along with the said affidavit.

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

information from the petitioner companies. Based on the information

received, the Official Liquidator has filed a report dated 13th March, 2015

wherein he has stated that he has not received any complaint against the

proposed Scheme of Amalgamation 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 their members, creditors or public interest, as

per second proviso of Section 394(1) of the Companies Act, 1956.

19. In response to the notices issued in the petition, Mr. A. K.

Chaturvedi, Regional Director, Northern Region, Ministry of Corporate

Affairs has filed his report dated 13th March, 2015. Relying on Clause

4.15(a) of the Scheme, 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. He has further submitted that in Clause

4.16(a) of the Scheme, it has been stated that amalgamation shall be an

'amalgamation in the nature of Merger' as defined in Accounting

Standard-14 issued by the Institute of Chartered Accountants of India

and shall be accounted for under the 'pooling of interest' method in

accordance with the said accounting standard. He further submitted that

in Clause 4.18 of the Scheme, it has been stated that upon this scheme

becoming effective, the transferor companies shall stand dissolved

without the process of winding up.

20. The Official Liquidator has not raised any objection to the proposed

Scheme of Amalgamation. However, in Para 23 of his report, he has

submitted that as per para 6(iii) of the petition, the appointed date is 1st

April, 2013, but as per the Scheme of Amalgamation, the appointed date

is 1st April, 2014. In response to the aforesaid observation, learned

counsel for the petitioners submitted that due to a typographical error in

the petition, the appointed date of the Scheme is mentioned as 1st April,

2013 whereas it is in fact 1st April, 2014, as mentioned in the Scheme. In

view thereof, the observation raised by the Official Liquidator does not

subsist.

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

from any other party. The petitioner companies, in the affidavits dated

24th February, 2015 of Mr. Rakesh Singla, authorized Signatory of

transferor company nos. 1 & 3 and Mr. Munish Singla, authorized

signatory of transferor company no. 2 and the transferee company, have

submitted that neither the petitioner companies nor their counsel have

received any objection pursuant to the citations published in the

newspapers on 30th January, 2015.

22. Considering the approval accorded by the equity shareholders and

creditors of the petitioner companies to the proposed Scheme of

Amalgamation and the affidavits filed by the Regional Director, Northern

Region, and the Official Liquidator not raising any objection 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 this order be filed with the Registrar of Companies

within 30 days. It is also clarified that this order will not be construed as

an order granting exemption from payment of stamp duty as payable in

accordance with law. Upon the sanction becoming effective from the

appointed date of Amalgamation, i.e. 1st April, 2014, the transferor

company nos. 1, 2 and 3 shall stand dissolved without undergoing the

process of winding up.

23. Learned counsel for the Official Liquidator prays that costs of

Rs.1.5 lakhs should be paid by the petitioners keeping in view the fact

that the matter has involved examination of extensive records and also

prioritized hearings. Learned counsel for the petitioners states that the

same is acceptable to him. Looking to the circumstances, the petitioner

shall deposit a sum of Rs.1.5 lakhs by way of costs with the Common

Pool Fund of the Official Liquidator within two weeks from today.

24. The petition is allowed in the above terms.

Dasti.

SUDERSHAN KUMAR MISRA, J.

April 16, 2015