Hespera Real Estate Private ... vs ...
2015 Latest Caselaw 3756 Del

                   IN THE HIGH COURT OF DELHI
                  COMPANY PETITION NO. 10/2015
                                             Reserved on 6th April, 2015
                                  Date of pronouncement: 8th May, 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 read with Rules 67 to 87
of the Companies (Court) Rules, 1959
Composite Scheme of Arrangement between:

Hespera Real Estate Private Limited
                                      Petitioner/Transferor Company No. 1

Hespera Infrastructure Private Limited
                                     Petitioner/Transferor Company No. 2

Hespera Properties Private Limited
                                      Petitioner/Transferor Company No. 3

Hespera Realcon Private Limited
                               Petitioner/Amalgamating Company No. 1

Hespera Constructions Private Limited
                               Petitioner/Amalgamating Company No. 2
     AND

Hespera Realty Private Limited
                                           Petitioner/Transferee Company

                                 Through Mr. Satwinder Singh and
                                 Mr.N.P.S. Chawla, 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 to 394 of the

Companies Act, 1956 read with Rules 67 to 87 of the Companies (Court)

Rules, 1959 by the petitioner companies seeking sanction of the

Composite Scheme of Arrangement between Hespera Real Estate

Private Limited (hereinafter referred to as the transferor company no. 1);

Hespera Infrastructure Private Limited (hereinafter referred to as the

transferor company no. 2); Hespera Properties Private Limited

(hereinafter referred to as the transferor company no. 3); Hespera

Realcon Private Limited (hereinafter referred to as the amalgamating

company no. 1); Hespera Constructions Private Limited (hereinafter

referred to as the amalgamating company no. 2); and Hespera Realty

Private Limited (hereinafter referred to as the transferee company).

2. The registered offices of the transferor, amalgamating and

transferee companies are situated at New Delhi, within the jurisdiction of

this court.

3. The transferor, amalgamating and transferee companies were

incorporated under the Companies Act, 1956 on 22nd December, 2009

with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi.

4. The present authorized share capital of the transferor,

amalgamating and transferee companies are Rs.1,00,000/- each divided

into 10,000 equity shares of Rs.10/- each. The issued, subscribed and

paid-up share capital of the companies are Rs.1,00,000/- each divided

into 10,000 equity shares of Rs.10/- each.

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

transferor, amalgamating and transferee companies have been filed on

record with the joint application, being CA(M) 173/2014, earlier filed by

the petitioners. The audited balance sheets, as on 31st March, 2014, of

the transferor, amalgamating and transferee companies, along with the

report of the auditors, and the provisional balance sheets, as on 29th

October, 2014, of the transferor, amalgamating and transferee

companies had also been filed.

6. A copy of the Composite Scheme of Arrangement 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 amalgamating companies no. 1 & 2 and the

transferee company are wholly owned subsidiaries of Maritime India

Trust, a private family trust established under the Indian Trust Act, 1882

by virtue of a trust deed dated 31st January, 2014; the transferor

company no. 1 is a wholly owned subsidiary of amalgamating company

no. 1; and transferor companies no. 2 & 3 are wholly owned subsidiaries

of the transferee company. It is further submitted that the Scheme, inter

alia, provides for amalgamation of transferor company no. 1 into the

amalgamating company no. 1; amalgamation of transferor companies no.

2 & 3 into the transferee company; and amalgamation of amalgamating

company no. 1 (including the assets and liabilities of transferor company

no. 1, pursuant to amalgamation) and amalgamating company no. 2 into

the transferee company. It is further submitted that the companies had

been originally incorporated with the objective of developing different real

estate/infrastructure projects. However, it is now the vision of the ultimate

shareholder of these companies that the businesses of the all the

companies be consolidated into one single entity, for improved synergies

and management focus. It is claimed that the proposed Scheme will

derive synergies and achieve economies of scale arising out of

consolidation of businesses of companies and will efficiently and

optimally utilize resources of all businesses under a single combined

entity.

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

provides as under:

"Transferor company no. 1 is a wholly owned subsidiary of the amalgamating company no. 1. Upon the Scheme becoming effective, the entire share capital of the transferor company no. 1 shall stand cancelled and there would be no issue of shares of the amalgamating company no.1 to the shareholders of the transferor company no. 1."

"Transferor companies no. 2 & 3 are wholly owned subsidiary of the transferee company. Upon the Scheme becoming effective, the entire share capital of the transferor companies no. 2 & 3 shall stand cancelled and there would be no issue of shares of the transferee company to the shareholders of the transferor companies no. 2 & 3."

"A lump sum consideration of Rs.1,00,000/- each shall be paid for amalgamation of the amalgamating company no. 1 and amalgamating company no. 2 with the transferee company totaling Rs.2,00,000/-, which shall be discharged

by the transferee company through the issue of 20,000 equity shares of the transferee company having face value of Rs.10/- each, credited as fully paid up to the Maritime India Trust. Further, no shares need to be issued to the other shareholders of the amalgamating company no. 1 and amalgamating company no. 2."

8. 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, amalgamating and transferee companies.

9. The Board of Directors of the transferor companies, amalgamating

company no. 2 and the transferee company in their separate meetings

held on 14th November, 2014 and the Board of Directors of the

amalgamating company no. 1 in their meeting held on 9th November,

2014 have unanimously approved the proposed Composite Scheme of

Arrangement. Copies of the Resolutions passed at the meetings of the

Board of Directors of the transferor, amalgamating and transferee

companies have been placed on record.

10. The petitioner companies had earlier filed CA (M) No. 173/2014

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

Composite Scheme of Arrangement. Vide order dated 22nd 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, amalgamating

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 Composite Scheme of Arrangement.

11. The petitioner companies have thereafter filed the present petition

seeking sanction of the Composite Scheme of Arrangement. Vide order

dated 12th January, 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 '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 5th 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 27th March, 2015

wherein he has stated that he has not received any complaint against the

proposed Composite Scheme of Arrangement from any person/party

interested in the Scheme in any manner and that the affairs of the

transferor companies & amalgamating 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.

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 27th March, 2015. Relying on Clauses

6.11.1 of Part-II, 13.1.1 of Part-II and 20.11.1 of Part-III of the Scheme,

he has stated that, upon sanction of the Composite Scheme of

Arrangement, all the employees of the transferor company no. 1; and all

the employees of the transferor companies no. 2 & 3 and amalgamating

companies no. 1 & 2 shall become the employees of the amalgamating

company no. 1 and the transferee company respectively, without any

break or interruption in their services. He has further submitted that in

Clauses 9.1 of Part-II, 16.1 of Part-II and 23.1 of Part-III of the Scheme, it

has been stated that the amalgamating company no. 1 shall account for

amalgamation of transferor company no. 1 and the transferee company

shall account for the amalgamation of transferor companies no. 2 & 3 and

amalgamating companies no. 1 & 2, in their books of accounts as per the

'Purchase Method' specified under the Accounting Standard-14 -

'Accounting for Amalgamation'. He further submitted that in Clause 12 of

Part-II, Clause 19 of Part-II and Clause 26 of Part-III of the Scheme, it

has been stated that upon this scheme becoming effective, the transferor

company no. 1, transferor companies no. 2 & 3 and amalgamating

companies no. 1 & 2 respectively, shall stand dissolved without the

process of winding up.

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

Arrangement from any other party. The petitioner companies, in the

affidavit dated 4th April, 2015 of Mr. N.P.S. Chawla, Counsel of the

petitioner companies, have submitted that neither the petitioner

companies nor their counsel have received any objection pursuant to the

citations published in the newspapers on 5th March, 2015.

15. Considering the approval accorded by the equity shareholders and

creditors of the petitioner companies to the proposed Composite Scheme

of Arrangement and the affidavits filed by the Regional Director, Northern

Region, and the Official Liquidator not raising any objection to the

proposed Composite Scheme of Arrangement, there appears to be no

impediment to the grant of sanction to the Composite Scheme of

Arrangement. Consequently, sanction is hereby granted to the

Composite Scheme of Arrangement 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 Arrangement, i.e.

1st August, 2014, the transferor companies no. 1, 2 & 3 and the

amalgamating companies no. 1 & 2 shall stand dissolved without

undergoing the process of winding up.

16. Learned counsel for the Official Liquidator prays that costs may be

imposed on the petitioner companies in view the fact that the matter has

involved examination of voluminous record and prioritized hearings. He

submits that cost of at least Rs.2,00,000/- be imposed. Learned counsel

for the petitioners states that the petitioner companies are ready and

willing to pay cost of Rs.2,00,000/-. Looking to the circumstances, the

petitioner companies shall deposit cost of Rs.2,00,000/- in the Common

Pool Fund of the Official Liquidator within two weeks from today.

17. The petition is allowed in the above terms.

Dasti.

SUDERSHAN KUMAR MISRA, J.

May 08, 2015