Anm Enginnering & Works Private ... vs ...
2015 Latest Caselaw 3838 Del

                    IN THE HIGH COURT OF DELHI
                  COMPANY PETITION NO. 747/2014

                                          Reserved on 17th March, 2015
                                Date of pronouncement: 14th 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

Scheme of Amalgamation of:

ANM Enginnering & Works Private Limited
                                 Petitioner/Transferor Company No. 1

Digivision Holdings Private Limited
                                      Petitioner/Transferor Company No. 2
      WITH

MN Ventures Private Limited
                                           Petitioner/Transferee Company

                               Through Mr. Bishwajit Bhattacharya,
                               Sr. Advocate with Ms. Shilpi Jain and
                               Mr. Sharad Vaid, Advocates for the
                               petitioners
                               Mr. Atma Sah, 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 by the petitioner companies seeking sanction of

the Scheme of Amalgamation of ANM Enginnering & Works Private

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

Digivision Holdings Private Limited (hereinafter referred to as the

transferor company no. 2) with MN Ventures 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 11th August, 2008 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 11th February, 2011 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 1st April, 2010 with the Registrar of Companies,

Punjab, Himachal Pradesh and Chandigarh under the name and style of

Infotel WiMax Enterprises Private Limited. The company changed its

name to MN Ventures Private Limited and obtained the fresh certificate of

incorporation on 23rd September, 2011. Thereafter, the company shifted

its registered office from the State of Punjab to Delhi and obtained a

certificate in this regard from the Registrar of Companies, NCT of Delhi &

Haryana at New Delhi on 16th May, 2013.

6. The present authorized share capital of the transferor company

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

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

company is Rs.5,01,00,000/- divided into 50,10,000 equity shares of

Rs.10/- each.

7. The present authorized share capital of the transferor company

no.2 is Rs.20,00,00,000/- divided into 50,00,000 equity shares of Rs.10/-

each aggregating to Rs.5,00,00,000/- and 1,50,00,000 preference shares

of Rs.10/- each aggregating to Rs.15,00,00,000/-. The issued, subscribed

and paid-up share capital of the company is Rs.16,00,00,000/- divided

into 39,00,000 equity shares of Rs.10/- each aggregating to

Rs.3,90,00,000/- and 1,21,00,000 zero percent, non-cumulative

optionally convertible redeemable preference shares of Rs.10/- each fully

paid-up aggregating to Rs.12,10,00,000/-.

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

Rs.20,00,000/- divided into 2,00,000 equity shares of Rs.10/- each. The

issued, subscribed and paid-up share capital of the company is

Rs.20,00,000/- divided into 2,00,000 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) 157/2014, earlier filed by the petitioners.

The audited balance sheets, as on 31st March, 2014 and as on 31st

October, 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 claimed that

the proposed amalgamation will increase the net worth of the transferee

company which would enable it to capitalize upon such improved net

worth to enhance the stakeholders' value. It is further claimed that the

proposed amalgamation will increase financial strength, enhance

flexibility and ability to raise larger resources, attract and retain better

talent and undertake larger support services related projects for telecom

infrastructure, thereby enabling proper and better realization of its future

business potential and prospects. It is also claimed that the

amalgamation will result in economies of scale, reduction in overheads,

administrative and other expenses, efficiency and optimal utilization of

various resources.

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 fully paid-up for every 61 fully paid-up equity shares of Rs.10/- each held in transferor company no. 1."

"01 equity share of Rs.10/- each of the transferee company fully paid-up for every 112 fully paid-up equity shares of Rs.10/- each held in 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

transferor and transferee companies.

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

in their separate meetings held on 3rd November, 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. 157/2014

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 18th November, 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

December, 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 'Jansatta'

(Hindi) editions. Affidavit of service has been filed by the petitioners

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 18th 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 22nd December,

2014 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 March, 2015, which was taken on

record vide order dated 29th April, 2015 passed in CA 1058/2015. Relying

on Clause 3.3.6(a) of Part-III 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 has

further submitted that in Clause 3.7.4 of Part-III of the Scheme, it has

been stated that for the purpose of reflecting the fair value of respective

assets and liabilities of the transferor companies in the books of the

transferee company on the appointed date, the transferee company shall

record the transactions under the "Purchase Method" defined in the

Accounting Standard-14 for "Accounting for Amalgamation" issued by the

Institute of Chartered Accountants of India. He further submitted that in

Clause 4.9 of Part-IV 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 10th

February, 2015 of Mr. Anil Kumar Jain, Authorized Signatory 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 18th December, 2014.

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 November, 2014, the transferor

company nos. 1 and 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.1.5 lakhs 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 petitioners states that

the same is acceptable to him. Considering the facts and circumstances

of the case, petitioner shall deposit a sum of Rs.1.5 lakhs, by way of

costs, with the Common Pool Fund of the Official Liquidator within two

weeks from today.

21. The petition is allowed in the above terms.

Dasti.

SUDERSHAN KUMAR MISRA, J.

May 14, 2015