Delhi High Court
Ambassador Infrastructure ... vs ... on 14 May, 2015
IN THE HIGH COURT OF DELHI
COMPANY APPLICATION (MAIN) NO. 64/2015
Reserved on 20th April, 2015
Date of pronouncement: 14th May, 2015
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):
And
Application under Section 391(1) of the
Companies Act, 1956
Scheme of Amalgamation of:
Ambassador Infrastructure Private Limited
Applicant/Transferor Company No. 1
Crossings Developers Private Limited
Applicant/Transferor Company No. 2
Crossings Constructions Private Limited
Applicant/Transferor Company No. 3
Crossings Promoters Private Limited
Applicant/Transferor Company No. 4
Crossings Real Estate Private Limited
Applicant/Transferor Company No. 5
Innovation Promoters Private Limited
Applicant/Transferor Company No. 6
New Capital Infrastructure Private Limited
Applicant/Transferor Company No. 7
Amazon Infrastructure Private Limited
Applicant/Transferor Company No. 8
WITH
Crossings Infrastructure Private Limited
Non-Applicant/Transferee Company
Through Mr. Rajiv Kumar and Ms. Alka
Srivastva, Advocates for the
applicants
CA (M) 64/ 2015 Page 1 of 8
SUDERSHAN KUMAR MISRA, J.
1. This joint application has been filed under Section 391(1) of the
Companies Act, 1956 by the applicant/transferor companies seeking
directions of this court to dispense with the requirement of convening the
meetings of their equity shareholders, secured and unsecured creditors
to consider and approve, with or without modification, the proposed
Scheme of Amalgamation of Ambassador Infrastructure Private Limited
(hereinafter referred to as the applicant/transferor company no. 1);
Crossings Developers Private Limited (hereinafter referred to as the
applicant/transferor company no. 2); Crossings Constructions Private
Limited (hereinafter referred to as the applicant/transferor company no.
3); Crossings Promoters Private Limited (hereinafter referred to as the
applicant/transferor company no. 4); Crossings Real Estate Private
Limited (hereinafter referred to as the applicant/transferor company no.
5); Innovation Promoters Private Limited (hereinafter referred to as the
applicant/transferor company no. 6); New Capital Infrastructure Private
Limited (hereinafter referred to as the applicant/transferor company
no.7); and Amazon Infrastructure Private Limited (hereinafter referred to
as the applicant/transferor company no. 8) with Crossings Infrastructure
Private Limited (hereinafter referred to as the transferee company) and to
dispense with the requirement of the transferee company to approach
this Court for seeking sanction of Scheme of Amalgamation.
2. The registered offices of the applicant/transferor companies and
the transferee company are situated at New Delhi, within the jurisdiction
of this Court.
3. The applicant/transferor company no. 1 was incorporated under
the Companies Act, 1956 on 10th January, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
4. The applicant/transferor company no. 2 was incorporated under
the Companies Act, 1956 on 1st May, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
5. The applicant/transferor company no. 3 was incorporated under
the Companies Act, 1956 on 3rd May, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
6. The applicant/transferor company no. 4 was incorporated under
the Companies Act, 1956 on 23rd May, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
7. The applicant/transferor company no. 5 was incorporated under
the Companies Act, 1956 on 20th May, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
8. The applicant/transferor company no. 6 was incorporated under
the Companies Act, 1956 on 2nd June, 2005 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
9. The applicant/transferor company no. 7 was incorporated under
the Companies Act, 1956 on 10th January, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
10. The applicant/transferor company no. 8 was incorporated under
the Companies Act, 1956 on 10th January, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
11. The present authorized share capital of the applicant/transferor
companies no. 1 to 8 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.
12. Copies of the Memorandum and Articles of Association of the
applicant/transferor companies and the transferee company have been
filed on record. The audited balance sheets, as on 31st March, 2014, of
applicant/transferor companies and the transferee company, along with
the report of the auditors, have also been filed.
13. 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 application and the accompanying affidavit. It is submitted
by the applicants that the transferor companies are wholly owned
subsidiaries of the transferee company. It is claimed that the proposed
amalgamation would enable pooling of physical and financial resources
of these companies for their most beneficial utilization in the combined
entity. It is further claimed that the proposed amalgamation will result in
usual economies of a centralized and a large company including
elimination of duplicate work, reduction in overheads, better and more
productive utilization of resources and enhancement of overall business
efficiency. It will enable these companies to combine their operational
strength, to build a wider capital and financial base and to promote and
secure overall growth of their businesses.
14. So far as the share exchange ratio is concerned, the Scheme
provides that since the transferor companies are wholly owned
subsidiaries of the transferee company, no share would be issued by the
transferee company to the transferor companies upon the Scheme
becoming finally effective, and the shares so held by the transferee
company in the transferor companies shall stand cancelled.
15. It has been submitted by the applicants that no proceedings under
Sections 235 to 251 of the Companies Act, 1956 are pending against the
applicant/transferor companies.
16. The Board of Directors of the applicant/transferor companies and
the transferee company in their separate meetings held on 27th February,
2015 and 28th February, 2015 respectively have unanimously approved
the proposed Scheme of Amalgamation. Copies of the Resolutions
passed at the meetings of the Board of Directors of the
applicant/transferor companies and the transferee company have been
placed on record.
17. The applicant/transferor companies no. 1 to 8 have 02 equity
shareholders each. All the equity shareholders of each company have
given their consents/no objections in writing to the proposed Scheme of
Amalgamation. Their consents/no objections have been placed on
record. They have been examined and found in order. In view thereof,
the requirement of convening the meeting of the equity shareholders of
the applicant/transferor companies no. 1 to 8 to consider and, if thought
fit, approve, with or without modification, the proposed Scheme of
Amalgamation is dispensed with. There is no secured or unsecured
creditor of the applicant/transferor companies no. 1 to 8, as on 27th
February, 2015.
18. The applicant also seeks dispensation of requirement of the
transferee company to approach this Court for sanction of Scheme of
Amalgamation under Sections 391-394 of the Companies Act, 1956 on
the ground that the Scheme does not entail or involve any arrangement
between the transferee company and its shareholders since
applicant/transferor companies are wholly owned subsidiaries of the
transferee company; no new shares will be issued by the transferee
company in lieu of the shares of the transferor companies; the Scheme
does not involve any restructuring or reorganization of the capital of the
transferee company in any manner; and there will be no change in the
control and management of the transferee company, therefore, the rights
of the shareholders of the transferee company will not be affected in any
manner whatsoever by the Scheme. It is further submitted that the
transferee company has high positive net worth and the aggregate of its
assets are sufficient to meet its liabilities towards its creditors. Therefore,
the rights of the creditors of the transferee company will not be adversely
affected. Learned counsel further submitted that the shareholders of the
transferee company have given their consents/no objections to the
proposed Scheme of Amalgamation, which are place on record.
19. The issue of holding and subsidiary companies has been
considered by this Court in many cases, such as Auto Tools India Pvt.
Ltd. [CA(M) 41/2010]; and Sharat Hardware Industries Pvt. Ltd.
(1978), 48 Com.Cas 23 (Delhi) as well as by Bombay High Court in
Mahaamba Investments Ltd. V. IDI Limited (2001) 105 Com Cas. 16
(Bom.) and Andhra Pradesh High Court in Andhra Bank Housing
Finance Ltd. (2004) 118 Com.Cas. 295 (AP), wherein it has been held
that there is no requirement to file a separate or joint application on
behalf of the transferee company for Sanction of Scheme of
Amalgamation.
20. In view of the aforesaid settled legal position and considering the
Scheme of Amalgamation, the requirement of the transferee company
having to approach this Court under Section 391 of the Companies Act,
1956 for sanction of the Scheme of Amalgamation is dispensed with.
21. The application stands allowed in the aforesaid terms.
Dasti
SUDERSHAN KUMAR MISRA, J.
May 14, 2015
