Bharti Infotel Private Limited vs ...
2015 Latest Caselaw 8227 Del

                   IN THE HIGH COURT OF DELHI
              COMPANY APPLICATION (MAIN) NO. 152/2015

                                     Reserved on 21st September, 2015
                           Date of pronouncement: 2nd November, 2015
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):

And

Application under Sections 391, 392 & 394 of
the Companies Act, 1956 read with Rules 6 &
9 of the Companies (Court) Rules, 1959

Scheme of Amalgamation of:

Bharti Infotel Private Limited
                                           Applicant/Transferor Company
       WITH

Bharti Enterprises (Holding) Private Limited
                                      Non-Applicant/Transferee Company

                                 Through Mr. Anand M.             Mishra,
                                 Advocate for the applicants

SUDERSHAN KUMAR MISRA, J.

1. This application has been filed under Sections 391, 392 & 394 of

the Companies Act, 1956 read with Rules 6 & 9 of the Companies

(Court) Rules, 1959 by the applicant/transferor company seeking

directions of this court to dispense with the requirement of convening the

meetings of its equity shareholders, secured and unsecured creditors to

consider and approve, with or without modification, the proposed

Scheme of Amalgamation of Bharti Infotel Private Limited (hereinafter

referred to as the applicant/transferor company) with Bharti Enterprises

(Holding) 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 company and the

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

this Court.

3. The applicant/transferor company was originally incorporated

under the Companies Act, 1956 on 4th March, 1983 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi under the name and

style of Bharti Overseas Private Limited. The company changed its name

to Bharti Enterprises Private Limited and obtained the fresh certificate of

incorporation on 15th December, 1997. The word 'Private' was deleted

from the name of the company w.e.f. 29.01.1998. The company again

changed its name to Bharti Enterprises Private Limited and obtained the

fresh certificate of incorporation on 9th May, 2000. The word 'Private' was

deleted from the name of the company w.e.f. 31.03.2000. The word

'Private' was added in the name of the company w.e.f. 02.03.2001. The

company finally changed its name to Bharti Infotel Private Limited and

obtained the fresh certificate of incorporation on 3rd June, 2006.

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

company is Rs.70,00,00,000/- divided into 70,00,000 equity shares of

Rs.100/- each. The present issued, subscribed and paid-up share capital

of the company is Rs.46,43,46,200/- divided into 46,43,462 equity shares

of Rs.100/- each.

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

applicant/transferor company and the transferee company have been

filed on record. The audited balance sheets, as on 31st March, 2014, of

applicant/transferor company and the transferee company, along with the

report of the auditors, have 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 application and the accompanying affidavit. It is claimed

by the applicant that the proposed amalgamation will reduce managerial

overlaps which are necessarily involved in running multiple entities;

reduce administrative cost; rationalize the company holding structure and

achieve operation and management efficiency.

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

provides that since the transferor company is a wholly owned subsidiary

of the transferee company, no shares of the transferee company shall be

allotted in lieu or exchange of its holding in the transferor company and

the share capital of the transferor company shall stand

cancelled/extinguished.

8. 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 company and the transferee company.

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

transferee company in their separate meetings held on 5th August, 2015

and 2nd July, 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 transferor and transferee

companies have been placed on record.

10. The applicant/transferor company has 02 equity shareholders and

03 unsecured creditors. Both the equity shareholders and all the

unsecured creditors 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 meetings of the

equity shareholders and unsecured creditors of the applicant/transferor

company to consider and, if thought fit, approve, with or without

modification, the proposed Scheme of Amalgamation is dispensed with.

There is no secured creditor of the applicant/transferor company, as on

31st July, 2015.

11. 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 the

transferor company is a wholly owned subsidiary of the transferee

company; no new shares will be issued by the transferee company in lieu

of the shares of the transferor company; 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. Learned counsel for the

applicants has submitted that the present Scheme does not envisage any

compromise or arrangement by the transferee company with their

creditors and that the assets of both the companies are more than

sufficient to meet their respective and combined aggregate liabilities

towards their respective creditors, therefore, the rights of the creditors of

the transferee company will not be adversely affected.

12. In support of his submissions, learned counsel placed reliance on

the judgments of several High Courts, including this Court, in many cases

such as Sharat Hardware Industries Pvt. Ltd. (1978), 48 Com. Cas 23

(Delhi); Mahaamba Investments Ltd. V. IDI Limited (2001) 105 Com

Cas. 16 (Bom.); and C.L. Media Private Limited Company & C.L.

Educate Limited Company (Company Petition No. 74/2014 decided by

this Court on 2nd May, 2014), 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 the Scheme.

13. I have carefully considered the aforesaid case laws cited at the

Bar, wherein the transferee company, being the holding company, has

been granted exemption from taking out separate proceedings under

Section 391(2) of the Companies Act, 1956. In view of this settled legal

position and considering the Scheme of Amalgamation, the requirement

of the transferee company having to approach this Court under Section

391(2) of the Companies Act, 1956 for sanction of the Scheme of

Amalgamation is dispensed with.

14. The application stands allowed in the aforesaid terms.

Dasti

SUDERSHAN KUMAR MISRA, J.

November 02, 2015