Delhi High Court
Vendee Builders Private Limited vs ... on 23 April, 2015
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 817/2014
Reserved on 24th 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(1) to 394 read
with Section 100 of the Companies Act, 1956
Scheme of Amalgamation of:
Vendee Builders Private Limited
Petitioner/Transferor Company No. 1
A-One Infratech Private Limited
Petitioner/Transferor Company No. 2
Holofix Urban Infrastructure Private Limited
Petitioner/Transferor Company No. 3
Genius Infratech Private Limited
Petitioner/Transferor Company No. 4
Laurel Real Estates Private Limited
Petitioner/Transferor Company No. 5
A to Z Infratech Private Limited
Petitioner/Transferor Company No. 6
RC Properties Private Limited
Petitioner/Transferor Company No. 7
AC Infratech Private Limited
Petitioner/Transferor Company No. 8
Ultimate Enterprises Private Limited
Petitioner/Transferor Company No. 9
AKC Investments Private Limited
Petitioner/Transferor Company No. 10
Ganadhipati Investments Private Limited
Petitioner/Transferor Company No. 11
CP 817/2014 Page 1 of 17
Ultimate Energy Limited
Petitioner/Transferor Company No. 12
SK Buildpro Private Limited
Petitioner/Transferor Company No. 13
Sungrace Buildwell Private Limited
Petitioner/Transferor Company No. 14
WITH
Sungrace Products (India) Private Limited
Petitioner/Transferee Company
Through Mr. Ashish Middha, Advocate
for the petitioners
Mr. Atma Sah, Assistant Registrar of
Companies for the Regional Director
SUDERSHAN KUMAR MISRA, J.
1. This joint petition has been filed under Sections 391(1) to 394 read
with Section 100 of the Companies Act, 1956 by the petitioner companies
seeking sanction of the Scheme of Amalgamation of Vendee Builders
Private Limited (hereinafter referred to as the transferor company no. 1);
A-One Infratech Private Limited (hereinafter referred to as the transferor
company no. 2); Holofix Urban Infrastructure Private Limited (hereinafter
referred to as the transferor company no. 3); Genius Infratech Private
Limited (hereinafter referred to as the transferor company no. 4); Laurel
Real Estates Private Limited (hereinafter referred to as the transferor
company no. 5); A to Z Infratech Private Limited (hereinafter referred to
as the transferor company no. 6); RC Properties Private Limited
(hereinafter referred to as the transferor company no. 7); AC Infratech
Private Limited (hereinafter referred to as the transferor company no. 8);
Ultimate Enterprises Private Limited (hereinafter referred to as the
transferor company no. 9); AKC Investments Private Limited (hereinafter
referred to as the transferor company no. 10); Ganadhipati Investments
Private Limited (hereinafter referred to as the transferor company no. 11);
Ultimate Energy Limited (hereinafter referred to as the transferor
company no. 12); SK Buildpro Private Limited (hereinafter referred to as
the transferor company no. 13); and Sungrace Buildwell Private Limited
(hereinafter referred to as the transferor company no. 14) with Sungrace
Products (India) 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 originally incorporated under the
Companies Act, 1956 on 4th August, 2003 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of Vendee Flexipack Private Limited. The company changed its
name to Vendee Builders Private Limited and obtained the fresh
certificate of incorporation on 11th April, 2007.
4. The transferor company no. 2 was originally incorporated under the
Companies Act, 1956 on 5th August, 2003 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of A-One Printo Flexipack Private Limited. The company changed
its name to A-One Infratech Private Limited and obtained the fresh
certificate of incorporation on 20th March, 2007.
5. The transferor company no. 3 was originally incorporated under the
Companies Act, 1956 on 9th September, 1998 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of Holofix India Private Limited. The company changed its name to
Holofix Urban Infrastructure Private Limited and obtained the fresh
certificate of incorporation on 1st June, 2007.
6. The transferor company no. 4 was incorporated under the
Companies Act, 1956 on 22nd February, 2008 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
7. The transferor company no. 5 was originally incorporated under the
Companies Act, 1956 on 9th January, 1991 with the Registrar of
Companies, West Bengal. Thereafter, the company shifted its registered
office from the State of West Bengal to Delhi and obtained a certificate in
this regard from the Registrar of Companies, NCT of Delhi & Haryana at
New Delhi on 14th September, 2011.
8. The transferor company no. 6 was incorporated under the
Companies Act, 1956 on 28th January, 2008 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
9. The transferor company no. 7 was incorporated under the
Companies Act, 1956 on 28th January, 2008 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
10. The transferor company no. 8 was incorporated under the
Companies Act, 1956 on 28th January, 2008 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
11. The transferor company no. 9 was originally incorporated under the
Companies Act, 1956 on 31st August, 1995 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of Royale Garden Hotels & Resorts Private Limited. The company
changed its name to Ultimate Enterprises Private Limited and obtained
the fresh certificate of incorporation on 20th May, 2003.
12. The transferor company no. 10 was incorporated under the
Companies Act, 1956 on 9th April, 2010 with the Registrar of Companies,
NCT of Delhi & Haryana at New Delhi.
13. The transferor company no. 11 was incorporated under the
Companies Act, 1956 on 9th April, 2010 with the Registrar of Companies,
NCT of Delhi & Haryana at New Delhi.
14. The transferor company no. 12 was incorporated under the
Companies Act, 1956 on 16th December, 2005 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
15. The transferor company no. 13 was incorporated under the
Companies Act, 1956 on 12th September, 2011 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
16. The transferor company no. 14 was incorporated under the
Companies Act, 1956 on 22nd February, 2008 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
17. The transferee company was incorporated under the Companies
Act, 1956 on 14th October, 1982 with the Registrar of Companies, NCT of
Delhi & Haryana at New Delhi.
18. The present authorized share capital of the transferor company
no.1 is Rs.1,00,00,000/- divided into 10,00,000 equity shares of Rs.10/-
each. The issued, subscribed and paid-up share capital of the company
is Rs.1,00,00,000/- divided into 10,00,000 equity shares of Rs.10/- each.
19. The present authorized share capital of the transferor company
no.2 is Rs.1,00,00,000/- divided into 10,00,000 equity shares of Rs.10/-
each. The issued, subscribed and paid-up share capital of the company
is Rs.1,00,00,000/- divided into 10,00,000 equity shares of Rs.10/- each.
20. The present authorized share capital of the transferor company
no.3 is Rs.1,25,00,000/- divided into 12,50,000 equity shares of Rs.10/-
each. The issued, subscribed and paid-up share capital of the company
is Rs.1,01,54,000/- divided into 10,15,400 equity shares of Rs.10/- each.
21. The present authorized share capital of the transferor company
no.4 is Rs.25,00,000/- divided into 2,50,000 equity shares of Rs.10/-
each. The issued, subscribed and paid-up share capital of the company
is Rs.10,00,000/- divided into 1,00,000 equity shares of Rs.10/- each.
22. The present authorized share capital of the transferor company
no.5 is Rs.1,07,00,000/- divided into 1,07,00,000 equity shares of Rs.1/-
each. The issued, subscribed and paid-up share capital of the company
is Rs.1,01,90,000/- divided into 1,01,90,000 equity shares of Rs.1/- each.
23. The present authorized share capital of the transferor company
no.6 is Rs.25,00,000/- divided into 2,50,000 equity shares of Rs.10/-
each. The issued, subscribed and paid-up share capital of the company
is Rs.6,00,000/- divided into 60,000 equity shares of Rs.10/- each.
24. The present authorized share capital of the transferor company
no.7 is Rs.25,00,000/- divided into 2,50,000 equity shares of Rs.10/-
each. The issued, subscribed and paid-up share capital of the company
is Rs.6,00,000/- divided into 60,000 equity shares of Rs.10/- each.
25. The present authorized share capital of the transferor company
no.8 is Rs.25,00,000/- divided into 2,50,000 equity shares of Rs.10/-
each. The issued, subscribed and paid-up share capital of the company
is Rs.6,00,000/- divided into 60,000 equity shares of Rs.10/- each.
26. The present authorized share capital of the transferor company
no.9 is Rs.6,00,00,000/- divided into 2,25,000 non-cumulative preference
shares of Rs.100/- each aggregating to Rs.2,25,00,000/-; and 37,50,000
equity shares of Rs.10/- each aggregating to Rs.3,75,00,000/-. The
issued, subscribed and paid-up share capital of the company is
Rs.3,74,00,000/- divided into 37,40,000 equity shares of Rs.10/- each.
27. The present authorized share capital of the transferor company
no.10 is Rs.5,00,00,000/- divided into 50,00,000 equity shares of Rs.10/-
each. The issued, subscribed and paid-up share capital of the company
is Rs.10,00,000/- divided into 1,00,000 equity shares of Rs.10/- each.
28. The present authorized share capital of the transferor company
no.11 is Rs.5,00,00,000/- divided into 50,00,000 equity shares of Rs.10/-
each. The issued, subscribed and paid-up share capital of the company
is Rs.10,00,000/- divided into 1,00,000 equity shares of Rs.10/- each.
29. The present authorized share capital of the transferor company
no.12 is Rs.50,00,000/- divided into 5,00,000 equity shares of Rs.10/-
each. The issued, subscribed and paid-up share capital of the company
is Rs.10,00,000/- divided into 1,00,000 equity shares of Rs.10/- each.
30. The present authorized share capital of the transferor company
no.13 is Rs.2,50,000/- divided into 25,000 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.
31. The present authorized share capital of the transferor company
no.14 is Rs.25,00,000/- divided into 2,50,000 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.
32. The present authorized share capital of the transferee company is
Rs.1,00,00,000/- divided into 1,00,000 equity shares of Rs.100/- each.
The issued, subscribed and paid-up share capital of the company is
Rs.55,80,000/- divided into 55,800 equity shares of Rs.100/- each.
33. 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) 170/2014, 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.
34. 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 will result in reduction in overheads and
other expenses, reduction in administrative and procedural work,
eliminate duplication of work, better and more productive utilization of
various resources and will enable the undertakings concerned to effect
internal economies and optimize productivity. It is further claimed that the
Scheme will enable the companies concerned to rationalize and
streamline their management, businesses and finances and lead to a
better and more economic control, over the running and management of
the businesses and undertakings of the said companies.
35. 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 company in the following ratio:
"84 equity shares of Rs.100/- each of the transferee company
credited as fully paid up for every 1000 equity shares of
Rs.10/- each held in the transferor company no. 1."
"89 equity shares of Rs.100/- each of the transferee company
credited as fully paid up for every 1000 equity shares of
Rs.10/- each held in the transferor company no. 2."
"62 equity shares of Rs.100/- each of the transferee company
credited as fully paid up for every 1000 equity shares of
Rs.10/- each held in the transferor company no. 3."
"43 equity shares of Rs.100/- each of the transferee company
credited as fully paid up for every 1000 equity shares of
Rs.10/- each held in the transferor company no. 4."
"66 equity shares of Rs.100/- each of the transferee company
credited as fully paid up for every 1000 equity shares of Rs.1/-
each held in the transferor company no. 5."
"38,843 equity shares of Rs.100/- each of the transferee
company credited as fully paid up for every 1000 equity
shares of Rs.10/- each held in the transferor company no. 6."
"33,566 equity shares of Rs.100/- each of the transferee
company credited as fully paid up for every 1000 equity
shares of Rs.10/- each held in the transferor company no. 7."
"37,908 equity shares of Rs.100/- each of the transferee
company credited as fully paid up for every 1000 equity
shares of Rs.10/- each held in the transferor company no. 8."
"24 equity shares of Rs.100/- each of the transferee company
credited as fully paid up for every 1000 equity shares of
Rs.10/- each held in the transferor company no. 9."
"39 equity shares of Rs.100/- each of the transferee company
credited as fully paid up for every 1000 equity shares of
Rs.10/- each held in the transferor company no. 10."
"39 equity shares of Rs.100/- each of the transferee company
credited as fully paid up for every 1000 equity shares of
Rs.10/- each held in the transferor company no. 11."
"51 equity shares of Rs.100/- each of the transferee company
credited as fully paid up for every 1000 equity shares of
Rs.10/- each held in the transferor company no. 12."
"01 equity share of Rs.100/- each of the transferee company
credited as fully paid up for every 5000 equity shares of
Rs.10/- each held in the transferor company no. 13."
"01 equity share of Rs.100/- each of the transferee company
credited as fully paid up for every 5000 equity shares of
Rs.10/- each held in the transferor company no. 14."
36. It has been submitted by the petitioners that no proceedings under
Sections 235 to 251 of the Companies Act, 1956 are pending against the
transferor and transferee companies.
37. The Board of Directors of the transferor and transferee companies
in their separate meetings held on 17th November, 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 have been placed on record.
38. The petitioner companies had earlier filed CA (M) No. 170/2014
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 17th December, 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.
39. The petitioner companies have thereafter filed the present petition
seeking sanction of the Scheme of Amalgamation. Vide order dated 24th
December, 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 'Business Standard' (English) and
(Hindi) editions. The petitioners have filed an affidavit showing
compliance regarding publication of citations in the aforesaid newspapers
on 31st January, 2015. Copies of the newspaper clippings containing the
publications have been filed along with the said affidavit.
40. 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 19th 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.
41. 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 18th March, 2015. Relying on Clause 10
of Part-III 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 13.8 of Part-III of the Scheme, it has been stated that
amalgamation shall be an 'amalgamation in the nature of merger' as
defined in Accounting Standard-14 as prescribed under Companies
(Accounting Standards) Rules, 2006 and shall be accounted for under
the 'pooling of interest' method in accordance with the said accounting
standard. He further submitted that in Clause 21.1 of Part-III of the
Scheme, it has been stated that upon this scheme becoming effective,
the transferor companies no. 1 to 14 shall stand dissolved without the
process of winding up.
42. Although the Regional Director in his report has not raised any
objection to the proposed Scheme, but he has pointed out that while the
companies have filed their balance sheets upto 31st March, 2014, the
proposed appointed date of the Scheme is 1st April, 2015, i.e. after nearly
one year, therefore, there is uncertainty with regard to the status of the
assets and liabilities that would ultimately stand transferred under the
proposed Scheme. In reply to aforesaid, the petitioner companies have
filed an affidavit dated 26th March, 2015 of Mr. Anuj Sharma, Director of
the transferee company stating that the transferor companies have been
carrying on their business in a prudent manner and after filing of their
balance sheets, as on 31st March, 2014, there have been no material
change in the financial position of the companies. He has further
submitted that the petitioner companies shall file their balance sheet as
on 31st March, 2015 and shall also file their Schedule of Properties as on
31st March, 2015, which will become a part of the Formal Order required
to be filed with the Registrar of Companies. He also undertakes to inform
the Court if there is any material change in the financial or other affairs in
the companies. In view of the above, the observation raised by the
Regional Director stands satisfied.
43. No objection has been received to the Scheme of Amalgamation
from any other party. The petitioner companies, in the affidavit dated 19th
March, 2015 of Mr. Anuj Sharma, Director of 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 31st January, 2015.
44. 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, 2015, the transferor
companies no. 1 to 14 shall stand dissolved without undergoing the
process of winding up.
45. Learned counsel for the Official Liquidator prays that costs of
Rs.5.0 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.5.0 lakhs by way of costs with the Common
Pool Fund of the Official Liquidator within four weeks from today.
46. The petition is allowed in the above terms.
Dasti.
SUDERSHAN KUMAR MISRA, J.
April 23, 2015
