N.H.M. Marketing Private Limited vs ...
2015 Latest Caselaw 9574 Del

                  IN THE HIGH COURT OF DELHI
                 COMPANY PETITION NO. 314/2015

                                    Reserved on 9th December, 2015
                        Date of pronouncement: 23rd December, 2015
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):

And

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

Scheme of Amalgamation of:

N.H.M. Marketing Private Limited
                                    Petitioner/Transferor Company No. 1

Global World Power Projects Private Limited
                                   Petitioner/Transferor Company No. 2
     WITH

Lambodar Projects Private Limited
                                         Petitioner/Transferee Company

                              Through      Mr.    Akhil Sibal  with
                              Ms.Shraddha Deshmukh, 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 & 394 of the

Companies Act, 1956 by the petitioner companies seeking sanction of

the Scheme of Amalgamation of N.H.M. Marketing Private Limited

(hereinafter referred to as the transferor company No. 1) and Global

World Power Projects Private Limited (hereinafter referred to as the

transferor company No. 2) with Lambodar Projects 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 9th October, 2001 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 transferee company was originally incorporated under the

Companies Act, 1956 on 13th May, 2003 with the Registrar of

Companies, Maharashtra at Mumbai under the name and style of

Lambodar Sugars Private Limited. 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 8th July, 2013. Thereafter, the company changed its name

to Lambodar Projects Private Limited and obtained the fresh certificate of

incorporation on 16th September, 2013.

6. The present authorized share capital of the transferor company

no.1 is Rs.23,00,000/- divided into 2,30,000 equity shares of Rs.10/-

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

is Rs.21,00,000/- divided into 2,10,000 equity shares of Rs.10/- each.

7. The present authorized share capital of the transferor company

no.2 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.4,58,80,000/- divided into 45,88,000 equity shares of Rs.10/- each.

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

Rs.15,07,00,000/- divided into 1,50,70,000 equity shares of Rs.10/- each.

The issued share capital of the company is Rs.6,41,10,000/- divided into

64,11,000 equity shares of Rs.10/- each. The subscribed and paid-up

share capital of the company is Rs.6,15,82,560/- divided into 61,58,256

equity shares of Rs.10/- each.

9. Copies of 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.

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 submitted by

the petitioners that it is proposed to downward integrate the business

activities of the companies in one company to create a large unified entity

thereby creating various areas of work facilities for the transferee

company and enabling optimal utilization of resources and synergy of

operations, thus, resulting in better profitability, increased fund

mobilization capacity and downwards business integration. It is claimed

that the proposed amalgamation will economize administrative costs of

running three companies and will also achieve better administration,

operations and management by consolidation, synchronization,

synergisation, and restructuring and to have optimum and efficient

utilization of capital, resources, assets and facilities.

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 of the transferee company for every 3.6 equity shares of Rs.10/- each fully paid up held in the transferor company no. 1."

"06 equity shares of Rs.10/- each of the transferee company for every 01 equity share 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 251 of the Companies Act, 1956 are pending against the

petitioner companies.

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

in their separate meetings held on 16th August, 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. 167/2014

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 23rd 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.

15. The petitioner companies have thereafter filed the present petition

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

July, 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 'Financial Express' (English) and

'Veer Arjun' (Hindi) 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 18th July, 2015.

Copies of the newspaper clippings containing the publications have been

filed along with the affidavit of service.

16. 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 17th November,

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.

17. 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 December, 2015. Relying on Clause

4.2 (K) 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 further submitted that in Clause 4.12 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.

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

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

December, 2015 of Sh. Surendra Kumar Sharma, authorized signatory 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 18th July, 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, 2015, the transferor

companies no. 1 & 2 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 09.12.2015, 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 23, 2015