Sd Bio Standard Diagnostics ... vs ...
2015 Latest Caselaw 3288 Del

                    IN THE HIGH COURT OF DELHI
                   COMPANY PETITION NO. 748/2014

                                          Reserved on 23rd March, 2015
                                Date of pronouncement: 23rd April, 2015
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):

And

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

Scheme of Amalgamation of:

SD Bio Standard Diagnostics Private Limited
                                    Non-Petitioner/Transferor Company
     WITH

Alere Medical Private Limited
                                           Petitioner /Transferee Company

                                  Through Mr. D.Bhattacharya and Ms.D.
                                  Ojha, Advocates for the petitioners
                                  Ms.    Aparna     Mudiam,     Assistant
                                  Registrar of Companies for the
                                  Regional Director

SUDERSHAN KUMAR MISRA, J.

1. This petition has been filed under Sections 391 & 394 of the

Companies Act, 1956 by the petitioner/transferee company seeking

sanction of the Scheme of Amalgamation of SD Bio Standard Diagnostics

Private Limited (hereinafter referred to as the transferor company) with

Alere Medical Private Limited (hereinafter referred to as the

petitioner/transferee company).

2. The registered office of the petitioner/transferee company is

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

registered office of the transferor company is situated at Gurgaon,

Haryana, outside the jurisdiction of this court. Learned counsel for the

petitioner submitted that separate proceedings on behalf of the transferor

company have been filed in the High Court of Punjab & Haryana at

Chandigarh for sanction of the Scheme of Amalgamation.

3. The petitioner/transferee company was originally incorporated

under the Companies Act, 1956 on 6th June, 1995 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi under the name and

style of Spectral Diagnostics Private Limited. The company changed its

name to Inverness Medical India Private Limited and obtained the fresh

certificate of incorporation on 28th May, 2008. The company again

changed its name to Alere Medical Private Limited and obtained the fresh

certificate of incorporation on 25th March, 2010.

4. The present authorized share capital of the petitioner/transferee

company is Rs.1,00,00,00,000/- divided into 10,00,00,000 equity shares

of Rs.10/- each. The issued, subscribed and paid-up share capital of the

company is Rs.21,39,43,060/- divided into 2,13,94,306 equity shares of

Rs.10/- each.

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

transferor company and the petitioner/transferee company have been

filed on record with the joint application, being CA(M) 150/2014, earlier

filed by the petitioners. The audited balance sheets, as on 31st March,

2014, of the transferor and transferee companies, along with the report of

the auditors, had also been filed.

6. 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 submitted that

the transferor company and the petitioner/transferee company both are

part of Alere Group which is headquartered in USA. It is claimed that the

proposed merger would derive the synergies arising out of consolidation

of business and would also provide focused approach to the customers

as treatment/products would be available with a single consolidated

entity. It is further claimed that the proposed merger would reduce the

operating/administrative costs and improve profitability.

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

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

petitioner/transferee company shall issue and allot equity shares to the

shareholders of the transferor company in the following ratio:

"10 equity shares of Rs.10/- each fully paid up of the transferee company for every 29 equity shares of Rs.10/- each fully paid up held in the transferor company."

8. It has been submitted by the petitioner that no proceedings under

Sections 235 to 251 of the Companies Act, 1956 are pending against the

petitioner/transferee company.

9. The Board of Directors of the transferor company and the

petitioner/transferee company in their separate meetings held on 5th

September, 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 company and the petitioner/transferee

company have been placed on record.

10. The petitioner/transferee company had earlier filed CA (M)

No.150/2014 seeking directions of this court to dispense with the

requirement of convening the meetings of its equity shareholders,

secured and unsecured creditors, which are statutorily required for

sanction of the Scheme of Amalgamation. Vide order dated 13th

November, 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 petitioner/transferee

company, there being no secured creditors of the petitioner company, to

consider and, if thought fit, approve, with or without modification, the

proposed Scheme of Amalgamation.

11. The petitioner companies have thereafter filed the present petition

seeking sanction of the Scheme of Amalgamation. Vide order dated 2nd

December, 2014, notice in the petition was directed to be issued to the

Regional Director, Northern Region. Citations were also directed to be

published in 'Financial Express' (English) and 'Jansatta' (Hindi) editions.

Affidavit of service has been filed by the petitioner showing compliance

regarding service on the Regional Director, Northern Region and also

regarding publication of citations in the aforesaid newspapers on 31st

December, 2014. Copies of the newspaper clippings containing the

publications have been filed along with the said affidavit.

12. 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 2nd March, 2015. Relying on Clause 9.1

of Part-C of the Scheme, 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. He has further submitted that in

Clause 6.2 of Part-B of the Scheme, it has been stated that the

transferee company shall account the amalgamation of the transferor

company as per pooling of interest method as set out in Accounting

Standards-14. He further submitted that in Clause 13 of Part-C of the

Scheme, it has been stated that upon this scheme becoming effective,

the transferor company shall stand dissolved without the process of

winding up.

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

from any other party. The petitioner/transferee company, in the affidavit

dated 3rd March, 2015 of Mr. Dhritiman Bhattacharyya, Counsel of the

petitioner/transferee company, has submitted that they have not received

any objection pursuant to the citations published in the newspapers on

31st December, 2014.

14. Considering the approval accorded by the equity shareholders and

creditors of the petitioner/transferee company to the proposed Scheme of

Amalgamation and the affidavit filed by the Regional Director, Northern

Region, 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, subject to

sanction of the Scheme of Amalgamation in respect of the transferor

company from the court of competent jurisdiction, sanction is hereby

granted to the Scheme of Amalgamation under Sections 391 and 394 of

the Companies Act, 1956. The petitioner company 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. The sanction

will be effective from the appointed date of Amalgamation, that is 1st April,

2014.

15. The petition is allowed in the above terms.

Dasti.

SUDERSHAN KUMAR MISRA, J.

April 23, 2015