Multani Properties And ... vs ...
2015 Latest Caselaw 8230 Del

                      IN THE HIGH COURT OF DELHI
                     COMPANY PETITION NO. 32/2015
                                      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
Petition under Sections 391(2) and 394 read
with Section 100 of the Companies Act, 1956
Scheme of Arrangement between:

Multani Properties and Investments Company Private Limited
                                       Petitioner/Demerged Company
      AND

H Thirty Six Enterprises Private Limited
                                              Petitioner/Resulting Company
                                 Through Ms. Aditi Sharma,       Advocate
                                 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) and 394

read with Section 100 of the Companies Act, 1956 by the petitioner

companies seeking sanction of the Scheme of Arrangement between

Multani Properties and Investments Company Private Limited

(hereinafter referred to as the demerged company) and H Thirty Six

Enterprises Private Limited (hereinafter referred to as the resulting

company).

2. The registered offices of the demerged and resulting companies

are situated at New Delhi, within the jurisdiction of this court.

3. The demerged company was incorporated under the Companies

Act, 1956 on 30th June, 1976 with the Registrar of Companies, NCT of

Delhi & Haryana at New Delhi.

4. The resulting company was incorporated under the Companies

Act, 1956 on 27th December, 2013 with the Registrar of Companies, NCT

of Delhi & Haryana at New Delhi.

5. The present authorized share capital of the demerged company is

Rs.50,00,000/- divided into 50,000 equity shares of Rs.100/- each. The

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

Rs.35,27,400/- divided into 35,274 equity shares of Rs.100/- each.

6. The present authorized share capital of the resulting company is

Rs.1,00,000/- divided into 1,000 equity shares of Rs.100/- each. The

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

Rs.1,00,000/- divided into 1,000 equity shares of Rs.100/- each.

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

demerged and resulting companies have been filed on record with the

joint application, being CA(M) 172/2014, earlier filed by the petitioners.

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

and resulting companies, along with the report of the auditors, had also

been filed.

8. A copy of the 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 that

the Scheme, inter alia, provides for demerger of the Jewellery Business

(Demerged Undertaking) of the demerged company into the resulting

company. It has been submitted by the petitioners that considering the

size of the demerged company and the significant growth in its business

operations, it would be rational to demerge the jewellery division and

merge it into the resulting company, so that focused attention can be

given to the jewellery business, to help it grow faster. It is claimed that

the reorganization will ensure better operational management and focus

on accelerated growth of individual units, with higher returns to the

shareholders, creditors, employees and also to the public in general.

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

provides that, upon coming into effect of this Scheme, the resulting

company shall issue and allot an aggregate of 17,637 equity shares of

Rs.100/- each to the shareholders of the demerged company, such that,

for every 02 equity shares of Rs.100/- each held in the demerged

company the shareholders will:

(i) hold 01 equity share of Rs.100/- each, credited as fully paid up, in the demerged company; and

(ii) receive 01 equity share of Rs.100/- each, credited as fully paid up, in the resulting company.

10. It has been submitted by the petitioners that no proceedings under

Sections 235 to 251 of the Companies Act, 1956 (corresponding to

Sections 210 to 227 of the Companies Act, 2013) are pending against the

demerged and resulting companies.

11. The Board of Directors of the demerged and resulting companies

in their separate meetings held on 3rd November, 2014 have unanimously

approved the proposed Scheme of Arrangement. Copies of the

Resolutions passed at the meetings of the Board of Directors of the

demerged and resulting companies have been placed on record.

12. The petitioner companies had earlier filed CA (M) No. 172/2014

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 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 demerged and resulting 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 Arrangement.

13. The petitioner companies have thereafter filed the present petition

seeking sanction of the Scheme of Arrangement. Vide order dated 27th

January, 2015, notice in the petition was directed to be issued to the

Official Liquidator and the Regional Director, Northern Region. Citations

were also directed to be published in 'Business Standard' (English) and

'Jansatta' (Hindi) Delhi editions. Affidavit of services has been filed by the

petitioners showing compliance regarding service on the Regional

Director, Northern Region, and also regarding publication of citations in

the aforesaid newspapers on 13th March, 2015. Copies of the newspaper

clippings containing the publications have been filed along with the said

affidavit.

14. 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 8th May, 2015

wherein he has stated that the Scheme involves only a demerger

whereby an undertaking of the demerged company will get demerged

into the resulting company and no company will be dissolved, pursuant to

this Scheme.

15. 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 8th May, 2015. Relying on Clause 3.9.1

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

Arrangement, all the employees of the demerged company engaged in

the Demerged Undertaking shall become the employees of the resulting

company without any break or interruption in their services.

16. No objection has been received to the Scheme of Arrangement

from any other party. The petitioner companies, in the affidavit dated 13th

August, 2015 of Ms. Aditi Sharma, counsel for the petitioner companies,

have submitted that no objection have been received pursuant to the

citations published in the newspapers on 13th March, 2015.

17. Considering the approval accorded by the shareholders and

creditors of the petitioner companies to the proposed Scheme of

Arrangement and the affidavits filed by the Official Liquidator and the

Regional Director, Northern Region, not raising any objection to the

proposed Scheme of Arrangement, there appears to be no impediment to

the grant of sanction to the Scheme of Arrangement. Consequently,

sanction is hereby granted to the Scheme of Arrangement under

Sections 391 and 394 read with Section 100 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 April,

2014, the Demerged Undertaking of the demerged company shall stand

merged in the resulting company.

18. Learned counsel for the Official Liquidator prays that costs may

also be imposed keeping in view the fact that the matter has involved

examination of extensive records and prioritized hearings. He submits

that at least costs of Rs.50,000/- should be paid by the petitioners.

Learned counsel for the petitioners states that the same is acceptable to

her. Looking to the circumstances, the petitioners shall deposit a sum of

Rs.50,000/- by way of costs in the Common Pool Fund of the Official

Liquidator, within three weeks.

19. The petition is allowed in the above terms.

Dasti.

SUDERSHAN KUMAR MISRA, J.

November 02, 2015