Delhi High Court
M/S. Dugar Capital Services ... vs ... on 23 March, 2015
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 663/2014
Reserved on 26th February, 2015
Date of pronouncement: 23rd March, 2015
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):
And
Petition under Sections 391(2) & 394 of the
Companies Act, 1956
Scheme of Amalgamation of:
M/s. Dugar Capital Services Private Limited
Petitioner/Transferor Company No. 1
M/s. Hina Overseas Private Limited
Petitioner/Transferor Company No. 2
WITH
M/s. Dipankur Ceroils Private Limited
Petitioner/Transferee Company
Through Mr. P. K. Mittal and Ms. Mehak
Gupta, Advocates for the petitioners
Ms. Aparna Mudiam, Assistant
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(2) & 394 of
the Companies Act, 1956 by the petitioner companies seeking sanction
of the Scheme of Amalgamation of M/s. Dugar Capital Services Private
Limited (hereinafter referred to as the transferor company no. 1) and
M/s.Hina Overseas Private Limited (hereinafter referred to as the
transferor company no. 2) with M/s. Dipankur Ceroils 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 13th August, 1993 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 12th October, 1993 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
5. The transferee company was incorporated under the Companies
Act, 1956 on 29th July, 1994 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.2,80,00,000/- divided into 28,00,000 equity shares of Rs.10/-
each. The issued, subscribed and paid-up share capital of the company
is Rs.2,80,00,000/- divided into 28,00,000 equity shares of Rs.10/- each.
7. The present authorized share capital of the transferor company
no.2 is Rs.2,10,00,000/- divided into 21,00,000 equity shares of Rs.10/-
each. The issued, subscribed and paid-up share capital of the company
is Rs.1,78,11,360/- divided into 17,81,136 equity shares of Rs.10/- each.
8. The present authorized share capital of the transferee company is
Rs.2,01,00,000/- divided into 20,10,000 equity shares of Rs.10/- each.
The issued, subscribed and paid-up share capital of the company is
Rs.74,23,550/- divided into 7,42,355 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 with the
joint application, being CA(M) 141/2014, 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.
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 the transferor companies are subsidiaries of the
transferee company and the proposed amalgamation would create
greater synergies between the businesses of these three companies and
would enable them to manage their business more efficiently by
effectively pooling the technical and marketing skills of both the
companies as an integrated entity and also enable effective management
and unified control of operations. It is claimed that the proposed
amalgamation will result in creating better synergies and optimal
utilization of resources built by the transferor companies and provide
better administration and cost reduction.
11. So far as the share exchange ratio is concerned, the Scheme
provides that 98.33% share capital of the transferor company no. 1 is
held by the transferee company and balance 1.67% share capital is held
by the transferor company no. 2. Further, the transferor company no. 2 is
a wholly owned subsidiary of the transferee company. Therefore, upon
coming into effect of this Scheme, the share capital of both the transferor
companies will stand automatically cancelled, extinguished and there will
be no issue and allotment of shares of the transferee company.
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
transferor and transferee companies.
13. The Board of Directors of the transferor company no. 1, transferor
company no. 2 and the transferee company in their separate meetings
held on 18th September, 2014, 19th September, 2014 and 18th
September, 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 transferor and transferee
companies have been placed on record.
14. The petitioner companies had earlier filed CA (M) No. 141/2014
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 14th October, 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 14th
November, 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 'Statesman' (English) and 'Veer
Arjun' (Hindi) editions. The petitioners have filed the affidavit showing
publication of citations in the aforesaid newspapers on 1st December,
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 Official Liquidator has filed a report dated 23rd February,
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 no. 1 & 2 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 24th February, 2015. Relying on Clause
4.2(h) of Part-II of the Scheme, he has stated that, upon sanction of the
Scheme of Amalgamation, all the employees of the transferor companies
no. 1 & 2 shall become the employees of the transferee company without
any break or interruption in their services. He has further submitted that
in Clause 7 of Part-II the Scheme, it has been stated that the transferee
company shall follow the method of accounting as prescribed for Pooling
of Interest method under Accounting Standard-14 as notified under the
Companies Accounting Rules, 2006. He further submitted that in Clause
8 of Part-II of the Scheme, it has been stated that upon this scheme
becoming effective, the transferor companies no. 1 & 2 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 12th
February, 2015 of Mr. V. K. Saxena, Director of the petitioner companies,
have submitted that the petitioner companies have not received any
objection pursuant to the citations published in the newspapers on 1st
December, 2014.
19. Considering the approval accorded by the equity shareholders and
unsecured 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 companies no. 1 & 2 shall stand dissolved
without undergoing the process of winding up.
20. The petition is allowed in the above terms.
Dasti.
SUDERSHAN KUMAR MISRA, J.
March 23, 2015
