Crayons Global Finance Private ... vs ...
2015 Latest Caselaw 9191 Del

                   IN THE HIGH COURT OF DELHI
                  COMPANY PETITION NO. 311/2015

                                     Reserved on 4th November, 2015
                         Date of pronouncement: 10th December, 2015
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):

And

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

Scheme of Amalgamation of:

Crayons Global Finance Private Limited
                                   Petitioner/Transferor Company No. 1

Ganges Radio Taxi Private Limited
                                     Petitioner/Transferor Company No. 2

J Tech Communication India Private Limited
                                  Petitioner/Transferor Company No. 3

Ludhiana Call Taxi Private Limited
                                     Petitioner/Transferor Company No. 4

Mega Holidays Private Limited
                                     Petitioner/Transferor Company No. 5

Mega Infotel Private Limited
                                     Petitioner/Transferor Company No. 6

Maxim Radio Cabs Limited
                                     Petitioner/Transferor Company No. 7
      WITH

Vimi Investments and Finance Private Limited
                                        Petitioner/Transferee Company

                                Through    Mr.     Mukesh     Sukhija,
                                Advocate for the petitioners
                                Mr. Sanjay Bose, Dy. Registrar of
                                Companies for the Regional Director



CP 311/2015                                              Page 1 of 13
                                  Mr. Sanjay Katyal, Advocate for the
                                 Official Liquidator

SUDERSHAN KUMAR MISRA, J.

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

the Companies Act, 1956 by the petitioner companies seeking sanction

of the Scheme of Amalgamation of Crayons Global Finance Private

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

Radio Taxi Private Limited (hereinafter referred to as the transferor

company no. 2), J Tech Communication India Private Limited (hereinafter

referred to as the transferor company no. 3), Ludhiana Call Taxi Private

Limited (hereinafter referred to as the transferor company no. 4), Mega

Holidays Private Limited (hereinafter referred to as the transferor

company no. 5), Mega Infotel Private Limited (hereinafter referred to as

the transferor company no. 6) and Maxim Radio Cabs Limited

(hereinafter referred to as the transferor company no. 7) with Vimi

Investments and Finance 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 7th February, 1995 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 20th October, 2010 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 8th August, 2006 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

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

Companies Act, 1956 on 9th March, 2009 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 27th April, 2005 with the Registrar of

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

style of Mega Holidays Limited. The company changed its name to Mega

Holidays Private Limited and obtained the fresh certificate of

incorporation on 4th May, 2013.

8. The transferor company no. 6 was incorporated under the

Companies Act, 1956 on 15th April, 2006 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, 1999 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

10. The transferee company was incorporated under the Companies

Act, 1956 on 17th February 1992 with the Registrar of Companies, NCT

of Delhi & Haryana at New Delhi.

11. The present authorized share capital of the transferor company

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

each. The present issued, subscribed and paid-up share capital of the

company is Rs.37,26,000/- divided into 3,72,600 equity shares of Rs.10/-

each.

12. The present authorized share capital of the transferor company

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

each. The present 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.

13. The present authorized share capital of the transferor company

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

each. The present issued, subscribed and paid-up share capital of the

company is Rs.41,00,000/- divided into 4,10,000 equity shares of Rs.10/-

each.

14. The present authorized share capital of the transferor company

no.4 is Rs.1,00,00,000/- divided into 10,00,000 equity shares of Rs.10/-

each. The present issued, subscribed and paid-up share capital of the

company is Rs.63,50,000/- divided into 6,35,000 equity shares of Rs.10/-

each.

15. The present authorized share capital of the transferor company

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

each. The present issued, subscribed and paid-up share capital of the

company is Rs.31,00,000/- divided into 3,10,000 equity shares of Rs.10/-

each.

16. The present authorized share capital of the transferor company

no.6 is Rs.10,00,000/- divided into 1,00,000 equity shares of Rs.10/-

each. The present issued, subscribed and paid-up share capital of the

company is Rs.2,00,000/- divided into 20,000 equity shares of Rs.10/-

each.

17. The present authorized share capital of the transferor company

no.7 is Rs.1,00,00,000/- divided into 10,00,000 equity shares of Rs.10/-

each. The present issued, subscribed and paid-up share capital of the

company is Rs.5,00,700/- divided into 50,070 equity shares of Rs.10/-

each.

18. 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 present issued, subscribed and paid-up share capital of the

company is Rs.99,75,000/- divided into 99,750 equity shares of Rs.100/-

each.

19. Copies of Memorandum and Articles of Association of the

transferor and transferee companies have been filed on record with the

joint application, being CA(M) 52/2015, 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.

20. 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 result in business synergy and

consolidation of these companies into one large company with a stronger

asset base. 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 resource 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.

21. 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:-

"09 equity shares of Rs.100/- each of the transferee company for every 08 equity shares of Rs.10/- each held in the transferor company no. 1."

"01 equity share of Rs.100/- each of the transferee company for every 03 equity shares of Rs.10/- each held in the transferor company no. 2."

"03 equity shares of Rs.100/- each of the transferee company for every 01 equity share of Rs.10/- each held in the transferor company no. 3."

"01 equity share of Rs.100/- each of the transferee company for every 01 equity share of Rs.10/- each held in the transferor company no. 4."

"01 equity share of Rs.100/- each of the transferee company for every 180 equity shares of Rs.10/- each held in the transferor company no. 5."

"01 equity share of Rs.100/- each of the transferee company for every 03 equity shares of Rs.10/- each held in the transferor company no. 6."

"01 equity share of Rs.100/- each of the transferee company for every 03 equity shares of Rs.10/- each held in the transferor company no. 7."

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

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

petitioner companies.

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

in their separate meetings held on 20th January, 2015 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.

24. The petitioner companies had earlier filed CA (M) No. 52/2015

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 18th May, 2015, this court

allowed the application and dispensed with the requirement of convening

and holding the meetings of the equity shareholders of the transferor and

transferee companies and unsecured creditors of transferor company

no.2 and the transferee company, there being no secured creditor of the

transferor company no. 2 and the transferee company and no secured or

unsecured creditors of the transferor companies no. 1, 3, 4, 5, 6 & 7, to

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

proposed Scheme of Amalgamation.

25. The petitioner companies have thereafter filed the present petition

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

May, 2015, 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) Delhi editions. Affidavit of service has been filed by the petitioners

showing compliance regarding service on the Regional Director, Northern

Region and the Official Liquidator, and also regarding publication of

citations in the aforesaid newspapers on 27th June, 2015. Copies of the

newspaper clippings containing the publications have been filed along

with the affidavit of service.

26. 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 30th September,

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.

27. 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 October, 2015. Relying on Clause

8(a) of Section D 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 15(a) of Section G 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 AS-14. He further submitted

that in Clause 10 of Section E 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.

28. Although no objection has been raised by the Regional Director to

the proposed Scheme of Amalgamation but in para 7.3 of his report he

has observed that all the petitioner companies are closely held

companies and are doing the business relating to making investment

and/or granting loan & advances whereas there is no mention as to

whether these companies are registered with RBI as NBFC, if so,

whether they have obtained no objection from the RBI with regard to the

proposed Scheme of Amalgamation. Further, as per balance sheet as at

31.03.2014, the transferor company nos. 3, 4 and 6 are having share

application money pending for allotment and that none of the said

companies have disclosed the treatment of such share application money

pending for allotment. In response to the aforesaid observation, the

petitioner companies in their affidavits dated 6th October, 2015 of

Mr.Kunal Lalani, Director of transferor companies no. 1, 6 and the

transferee company; Mr. Manish Jain, Director of transferor company

no.2; Ms. Sachi Lalani, Director of transferor companies nos. 3, 4 & 5;

and Mr. Surendra Chhalani, Director of transferor company no. 7, have

submitted that none of the petitioner companies are NBFCs and

therefore, the question of obtaining the NOC from the RBI with regard to

the proposed Scheme of Amalgamation does not arise. It has been

further submitted that transferor companies no. 3 and 4 have allotted the

share application money and have also filed the requisite Form PAS-3

with the Registrar of Companies in this behalf. As regards the transferor

company no. 6, the share application money has been duly refunded to

Mega Airways Limited in the month of April, 2014. The petitioner

companies have also annexed a certificate dated 5th October, 2015 of

Sipani & Associates, Chartered Accountants confirming refund of the

share application money as also copies of the challans filed by transferor

companies nos. 3 & 4. In view of the aforesaid, the observations raised

by the Regional Director stand satisfied.

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

from any other party. The petitioner companies, in the affidavits dated 3rd

October, 2015 of Sh. Kunal Lalani, Director of the transferor companies

no. 1, 6 and the transferee company; Sh. Manish Jain, Director of

transferor company no. 2; Ms. Sachi Lalani, Director of transferor

companies no. 3, 4, and 5 and Sh. Surendra Chhalani, Director of

transferor company no. 7 have submitted that neither the petitioner

companies nor their counsel have received any objection pursuant to the

citations published in the newspapers on 27th June, 2015.

30. Considering the approval accorded by the 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 7 shall stand dissolved without undergoing the

process of winding up.

31. Learned counsel for the Official Liquidator prays that costs of at

least Rs.1,00,000/- 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 petitioner companies

states that the same is acceptable to him. As already directed vide order

dated 04.11.2015, the petitioners shall deposit a sum of Rs.1,00,000/- by

way of costs with the Common Pool Fund of the Official Liquidator.

32. The petition is allowed in the above terms.

Dasti.

SUDERSHAN KUMAR MISRA, J.

December 10, 2015