Ahlstrom Capital Solar Private ... vs ...
2015 Latest Caselaw 9593 Del

                   IN THE HIGH COURT OF DELHI
                  COMPANY PETITION NO. 119/2015
                                     Reserved on 7th 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 Sections 391 to 394 of the
Companies Act, 1956
Scheme of Amalgamation of:
Ahlstrom Capital Solar Private Limited
                                           Petitioner/Transferor Company
      WITH
Sipra Services and Investments Private Limited
                                    Non-Petitioner/Transferee Company
                               Through       Mr.    Vikrant    Rohilla,
                               Mr.Akshay Chandana and Mr. Rohit
                               Puri, 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 petition has been filed under Sections 391 to 394 of the

Companies Act, 1956 by the petitioner/transferor company seeking

sanction of the Scheme of Amalgamation of Ahlstrom Capital Solar

Private Limited (hereinafter referred to as the petitioner/transferor

company) with Sipra Services and Investments Private Limited

(hereinafter referred to as the transferee company).

2. The registered office of the petitioner/transferor company is

situated at New Delhi, within the jurisdiction of this Court. However, the

registered office of the transferee company is situated at Maharashtra,

outside the jurisdiction of this Court. Learned counsel for the petitioner

have submitted that the Scheme of Amalgamation in respect of the

transferee company has already been approved by the High Court of

Bombay vide order dated 31st July, 2015.

3. The petitioner/transferor company was incorporated under the

Companies Act, 1956 on 5th June, 2010 with the Registrar of Companies,

NCT of Delhi & Haryana at New Delhi.

4. The present authorized share capital of the petitioner/transferor

company is Rs.5,00,00,000/- divided into 50,00,000 equity shares of

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

of the company is Rs.1,02,08,060/- divided into 10,20,806 equity shares

of Rs.10/- each.

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

transferor and the transferee companies have been filed on record with

the application, being CA(M) 146/2014, earlier filed by the petitioner. The

audited balance sheets, as on 31st March, 2013, along with the report of

the auditors, and the unaudited balance sheets, as on 31st March, 2014,

of the transferor and transferee companies, had also been filed.

6. 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 petitioner that the proposed amalgamation will enable the transferee

company to enhance its services across different class of customers

more efficiently and will benefit from synergies, economies and

consolidation of management. It is further claimed that the proposed

amalgamation will achieve economies of scale; lesser regulatory/

procedural compliances; integrate, rationalize and streamline the

management structure of the merged businesses.

7. So far as the share exchange ratio is concerned, the Scheme

provides that, upon coming into effect of this Scheme, the transferee

company shall pay to the shareholders of the transferor company a sum

of Rs.3.95/- each for every 01 ordinary share of the face value of Rs.10/-

each held by them in the transferor company.

8. It has been submitted by the petitioner that no proceedings under

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

petitioner/transferor company.

9. The Board of Directors of the petitioner/transferor company and the

transferee company in their separate meetings held on 28th April, 2014

and 29th March, 2014 respectively have unanimously approved the

proposed Scheme of Amalgamation. Copies of the Resolutions passed at

the meetings of the Board of Directors of the petitioner/transferor

company and the transferee company have been placed on record.

10. The petitioner/transferor company had earlier filed CA (M) No.

146/2014 seeking directions of this court to dispense with the

requirement of convening the meetings of its equity shareholders,

secured and unsecured creditors, which are statutorily required for

sanction of the Scheme of Amalgamation. Vide order dated 27th October,

2014, this court allowed the application and dispensed with the

requirement of convening and holding the meeting of the equity

shareholders of the petitioner/transferor company, there being no

secured or unsecured creditor of the petitioner/transferor company, to

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

proposed Scheme of Amalgamation.

11. The petitioner/transferor company has thereafter filed the present

petition seeking sanction of the Scheme of Amalgamation. Vide order

dated 11th March, 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 'Indian Express' (English)

and 'Jansatta' (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 25th March, 2015.

Copies of the newspaper clippings containing the publications have been

filed along with the said affidavit.

12. 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 25th May, 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.

13. 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 21st July, 2015. Relying on Clause 13.1

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 has further submitted that in Clause 14.1

of the Scheme, it has been stated that upon the Scheme becoming

effective, the transferee company shall account for the amalgamation of

the transferor company as per Accounting Standard-14 Accounting for

Amalgamation by Purchase Method as stated in the Companies

(Accounting Standards) Rules, 2006. He further submitted that in Clause

20 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.

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

from any other party. The petitioner company in the affidavit dated 12th

October, 2015 of Mr. Mukesh Kumar Sagar, clerk of the counsel for the

petitioner, has submitted that the counsel for the petitioner have not

received any objection pursuant to the citations published in the

newspapers on 25th March, 2015.

15. Considering the approval accorded by the equity shareholders of

the petitioner company to the proposed Scheme of Amalgamation, there

being no secured or unsecured creditors of the petitioner company; the

affidavits filed by the Regional Director, Northern Region, and the Official

Liquidator not raising any objection to the proposed Scheme of

Amalgamation, and orders dated 31st July, 2015 passed by High Court of

Bombay approving the Scheme of Amalgamation in respect of the

transferee company, 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 company 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.

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

least Rs.1,00,000/- should be paid by the petitioner keeping in view the

fact that the matter has involved examination of extensive records and

also prioritized hearings. Learned counsel for the petitioner company

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

dated 07.12.2015, the petitioner shall deposit a sum of Rs.1,00,000/- by

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

17. The petition is allowed in the above terms.

Dasti.

SUDERSHAN KUMAR MISRA, J.

December 23, 2015