Sharp Capital Private Limited vs ...
2015 Latest Caselaw 9192 Del

                    IN THE HIGH COURT OF DELHI
                   COMPANY PETITION NO. 276/2015
                                     Reserved on 19th 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 to 394 of the
Companies Act, 1956
Scheme of Amalgamation of:
Sharp Capital Private Limited
                                             Petitioner/Transferor Company
      WITH
Sharp Credits Limited
                                            Petitioner/Transferee Company
                                 Through Mr. Vivek Malik with Mr.Mukul
                                 Thakur, Advocates for the petitioners
                                 Mr. Sanjay Bose, Dy. 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 to 394 of the

Companies Act, 1956 by the petitioner companies seeking sanction of

the Scheme of Amalgamation of Sharp Capital Private Limited

(hereinafter referred to as the transferor company) with Sharp Credits

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 was incorporated under the Companies

Act, 1956 on 7th March, 1995 with the Registrar of Companies, NCT of

Delhi & Haryana at New Delhi.

4. The transferee company was incorporated under the Companies

Act, 1956 on 16th October, 1986 with the Registrar of Companies, NCT of

Delhi & Haryana at New Delhi.

5. The present authorized share capital of the transferor company 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.9,02,000/- divided into 90,200 equity shares of Rs.10/- each.

6. The present authorized share capital of the transferee company 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.10,00,000/- divided into 1,00,000 equity shares of Rs.10/- each.

7. 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, 2014, of the transferor and

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

been filed.

8. 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 amalgamation will consolidate the shareholding of both the transferor

and transferee companies and improve the administrative control. It is

further claimed that the proposed Scheme will result in formation of a

large company enabling further growth and development of the

businesses of the said companies and will also increase the efficiency by

pooling of resources and their optimum utilization, thereby availing

synergies from combined resources.

9. 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:

"01 equity share of Rs.10/- each in the transferee company, credited as fully paid up, for every 34 equity shares of Rs.10/- each held by them in the transferor company."

10. 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.

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

in their separate meetings held on 7th 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.

12. The petitioner companies had earlier filed CA (M) No. 42/2015

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 29th April, 2015, 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 company and equity shareholders of the

transferee company, there being no secured creditor of the transferor

company and no secured or unsecured creditors of the transferee

company, to consider and, if thought fit, approve, with or without

modification, the proposed Scheme of Amalgamation.

13. The petitioner companies have thereafter filed the present petition

seeking sanction of the Scheme of Amalgamation. Vide order dated 18th

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 'Statesman' (English) and 'Jansatta'

(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 and 26th June,

2015 respectively. Copies of the newspaper clippings containing the

publications have been filed along with the affidavit of service.

14. 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 August, 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 company

do not appear to have been conducted in a manner prejudicial to the

interest of its members, creditors or public interest, as per second proviso

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

15. 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 16th September, 2015. Relying on

Clause 7 of Part-IV 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 further submitted that in

Clause 9 of Part-IV 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.

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

the proposed Scheme of Amalgamation, but in para 9 of his report he has

submitted that from the Memorandum of Association of the transferee

company, it has been observed that its main objects are to provide

industrial finance by way of advance, or lend money, to or any company

etc. but there is no mention whether it is registered with RBI as NBFC to

carry on such business. He, therefore, prays that the company may be

asked as to whether it is registered with RBI as NBFC, if so, whether it

has obtained prior written permission from the RBI with regard to the

proposed Scheme of Amalgamation. Further, in para 13 of his report, the

Regional Director has submitted that the accounting treatment clause is

not mentioned in the Scheme. He, therefore, prays that the petitioner

company may be asked to comply with accounting treatment as

prescribed under Accounting Standard-14.

17. In response to the aforesaid observations, the petitioner

companies in the affidavit dated 14th October, 2015 of Mr. Subash Garg,

Director of the transferee company have submitted that the petitioner

companies are not carrying on any business as a Non Banking Finance

Company and therefore it is not registered with the Reserve Bank of

India. The petitioner companies have also undertaken that the transferee

company shall comply with/adopt accounting treatment as prescribed

under Accounting Standard-14 issued by the Institute of Chartered

Accountants of India. The undertaking given by the petitioners is

accepted and they shall remain bound by the same. In view of the

aforesaid the observations raised by the Regional Director stand

satisfied.

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

from any other party. The petitioner companies in the affidavit dated 14th

October, 2015 of Mr. Subash Garg, Director of the transferee company

have submitted that they have not received any objection pursuant to the

citations published in the newspapers on 26th and 27th June, 2015.

19. 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, 2014, the transferor

company shall stand dissolved without undergoing the process of winding

up.

20. 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 19.11.2015, the petitioners shall deposit a sum of Rs.1,00,000/- by

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

21. The petition is allowed in the above terms.

Dasti.

SUDERSHAN KUMAR MISRA, J.

December 10, 2015