Inc Research Cds Services Private ... vs ...
2015 Latest Caselaw 6043 Del

                   IN THE HIGH COURT OF DELHI
                  COMPANY PETITION NO. 236/2014
                                             Reserved on 10th July, 2015
                               Date of pronouncement: 18th August, 2015
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):
And
Petition under Sections 391 to 394 of the
Companies Act, 1956
Scheme of Amalgamation of:
INC Research CDS Services Private Limited
                                 Petitioner/Transferor Company No. 1
Trident Clinical Research India Private Limited
                                     Petitioner/Transferor Company No. 2
      WITH
Kendle India Private Limited
                                           Petitioner/Transferee Company
                                 Through Mr. Mohit Chadha and
                                 Mr.Ishwar, Advocate for the petitioners
                                 Ms. Aparna Mudiam, AROC for the
                                 Regional Director
                                 Mr. Kanwal Choudhary, Advocate for
                                 the Official Liquidator
SUDERSHAN KUMAR MISRA, J.

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

Companies Act, 1956 by the petitioner companies seeking sanction of

the Scheme of Amalgamation of INC Research CDS Services Private

Limited (hereinafter referred to as the transferor company no. 1) and

Trident Clinical Research India Private Limited (hereinafter referred to as

the transferor company no. 2) with Kendle 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 21st May, 2007 with the Registrar of

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

style of INC GVK Bio Private Limited. The company changed its name to

INC Research CDS Services Private Limited and obtained the fresh

certificate of incorporation on 13th March, 2012.

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

Companies Act, 1956 on 12th September, 2006 with the Registrar of

Companies, Maharashtra at Mumbai. Thereafter, the company shifted its

registered office from the State of Maharashtra to Delhi and obtained a

certificate in this regard from the Registrar of Companies, NCT of Delhi &

Haryana at New Delhi on 9th January, 2013.

5. The transferee company was incorporated under the Companies

Act, 1956 on 16th December, 2004 with the Registrar of Companies, NCT

of Delhi & Haryana at New Delhi.

6. The present authorized share capital of the transferor company

no.1 is Rs.2,00,00,000/- each divided into 20,00,000 equity shares of

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

companies are Rs.1,49,60,000/- each divided into 14,96,000 equity

shares of Rs.10/- each fully paid-up.

7. The present authorized share capital of the transferor company

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

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

companies are Rs.7,21,800/- each divided into 72,180 equity shares of

Rs.10/- each fully paid-up.

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

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

The issued, subscribed and paid-up share capital of the companies are

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

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

transferor and transferee companies have been filed on record. The

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

transferee companies, along with the report of the auditors, have also

been filed.

10. 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 by

the petitioners that the amalgamation would result in elimination of the

overhead outstanding and other expenses and it will ensure optimum

utilization of available services and resources. It is further claimed that

the amalgamation will enable pooling of resources of both the companies

to their common advantage, resulting in more productive utilization of the

said resources, cost & operational efficiencies which would be beneficial

for all stakeholders.

11. 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:

"01 equity share of Rs.10/- each fully paid up of the transferee company for every 65 equity shares of Rs.10/- each fully paid up held in the transferor company no. 1."

"01 equity share of Rs.10/- each fully paid up of the transferee company for every 10 equity shares of Rs.10/- each fully paid up held in the transferor company no. 2."

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

Sections 235 to 250A of the Companies Act, 1956 are pending against

the transferor and transferee companies.

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

in their separate meetings held on 3rd January, 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.

14. The petitioner companies had earlier filed CA (M) No. 55/2014

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 26th March, 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.

15. The petitioner companies have thereafter filed the present petition

seeking sanction of the Scheme of Amalgamation. Vide order dated 21st

April, 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 'Financial Express' (English) and

„Dainik Jagran‟ (Hindi) editions. Affidavit of service has been filed by the

petitioner 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 1st May, 2014.

Copies of the newspaper clippings containing the publications have been

filed along with the said affidavit.

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

information from the petitioner companies. Based on the information

received, the Dy. Official Liquidator has filed a report 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.

17. The Dy. Official Liquidator in Para 17 of his report has submitted

that the appointed date, as mentioned in the Scheme, is 01.04.2013

whereas in Para 17.A of the petition, it has been mentioned as

01.04.2012. He, therefore, prays that a clarification may be sought from

the petitioners in this regard. In response to the aforesaid observation,

learned counsel for the petitioners has submitted that due to

typographical error, the appointed date has wrongly been mentioned in

the petition as 01.04.2012 and the same may be read as 01.04.2013. In

view of the aforesaid, the observation raised by the Official Liquidator

stands satisfied.

18. 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 5th September, 2014. Relying on Clause

7.1 of Part-II 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.

19. Although the Regional Director in his report has not raised any

objection to the proposed Scheme, but he has raised certain

observations in paras 4, 5, 6 & 8 of his report. In para 4 of his report he

has stated that the as per the Scheme of Amalgamation, there is no

mention regarding compliance procedure under Accounting Standard-14

as prescribed under the Companies (Accounting Standards) Rules, 2006.

In para 5 & 6 of his report he has stated that the authorized share capital

of the transferee company is not sufficient to allot shares to the transferor

companies, therefore, the transferee company may be advised to comply

with the provisions of the Companies Act, 2013 with regard to increase in

the authorized share capital and change in its Memorandum of

Association. In para 8 of his report he has stated that the petitioner

company may be advised to furnish the undertaking for necessary

compliances from the Reserve Bank of India as required under FEMA

with regard to the shares held by the foreigner/NRI. In reply to aforesaid,

the petitioner companies have filed an affidavit dated 7th April, 2015 of

Mr. Shabbir Rangwala, Director of the petitioner companies whereby the

transferee company has undertaken to comply with the procedures under

Accounting Standard-14 as prescribed under the Companies (Accounting

Standards) Rules, 2006 and has also undertaken to comply with all the

applicable compliances as required by the RBI under FEMA, if and when

they arise in respect of the foreign shareholding. Further, it is submitted

that as per the Scheme, the authorized share capital of the transferor

companies shall stand merged in the authorized share capital of the

transferee company and furthermore, if required, the transferee company

shall take necessary steps to further increase and alter its authorized

share capital suitably. In view of the above, the observations raised by

the Regional Director stand satisfied.

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

from any other party. The petitioner companies, in the affidavit dated 7th

April, 2015 of Mr. Shabbir Rangwala, Director of the petitioner

companies, have submitted that neither the petitioner companies nor

their counsel have received any objection pursuant to the citations

published in the newspapers on 1st May, 2014.

21. 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, 2013, the transferor

companies nos. 1 & 2 shall stand dissolved without undergoing the

process of winding up.

22. The petition is allowed in the above terms.

Dasti.

SUDERSHAN KUMAR MISRA, J.

August 18, 2015