Mobinteco Limited vs ...
2015 Latest Caselaw 8430 Del

                  IN THE HIGH COURT OF DELHI
                 COMPANY PETITION NO. 160/2015

                                      Reserved on 8th October, 2015
                         Date of pronouncement: 6th November, 2015
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):

And

Petition under Sections 391 & 394 of the
Companies Act, 1956

Scheme of Amalgamation of:

Mobinteco Limited
                                   Petitioner/Transferor Company No. 1

Y2CF Digital Media Limited
                                   Petitioner/Transferor Company No. 2
      WITH

Hike Limited
                                         Petitioner/Transferee Company

                              Through Mr. P. Nagesh, Mr. Anand M.
                              Mishra and Mr. Abhinav Lal, 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 & 394 of the

Companies Act, 1956 by the petitioner companies seeking sanction of

the Scheme of Amalgamation of Mobinteco Limited (hereinafter referred

to as the transferor company no. 1) and Y2CF Digital Media Limited

(hereinafter referred to as the transferor company no. 2) with Hike

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 13th October, 2011 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 1st July, 2010 with the Registrar of Companies,

NCT of Delhi & Haryana at New Delhi.

5. The transferee company was incorporated under the Companies

Act, 1956 on 13th October, 2011 with the Registrar of Companies, NCT of

Delhi & Haryana at New Delhi.

6. The present authorized share capital of the transferor company

no.1 is Rs.85,00,00,000/- divided into 8,50,00,000 equity shares of

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

company is Rs.76,23,00,000/- divided into 7,62,30,000 equity shares of

Rs.10/- each.

7. The present authorized share capital of the transferor company

no.2 is Rs.1,10,00,000/- divided into 11,00,000 equity shares of Rs.10/-

each. The issued, subscribed and paid-up share capital of the company

is Rs.78,27,830/- divided into 7,82,783 equity shares of Rs.10/- each.

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

Rs.100,00,00,000/- divided into 9,90,00,000 equity shares of Rs.10/-

each aggregating to Rs.99,00,00,000/-; and 10,00,000 preference shares

of Rs.10/- each aggregating to Rs.1,00,00,000/-. The present issued,

subscribed and paid-up share capital of the company is

Rs.87,49,57,790/- divided into 8,66,10,997 equity shares of Rs.10/- each

aggregating to Rs.86,61,09,970/-; and 8,84,782 preference shares of

Rs.10/- each aggregating to Rs.88,47,820/-

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

transferor and transferee companies have been filed on record. The

audited balance sheets, as on 31st March, 2014, of the transferor and

transferee companies, along with the report of the auditors, have 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 by

the petitioners that the proposed amalgamation will result in

establishment of a larger company with large resources, a large capital

base and a greater capacity to raise funds for expansion, modernization

and development of the businesses of the companies concerned. It is

further claimed that proposed amalgamation will enable the undertakings

and businesses of the said companies to obtain greater facilities,

possessed and enjoyed by one large company for securing and

conducting its business on favourable terms and other benefits.

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, credited as fully paid-up, for every 141 equity shares of Rs.10/- each fully paid up held by the shareholders in the transferor company no. 1."

"01 equity share of Rs.10/- each of the transferee company, credited as fully paid-up, for every 5.61 equity shares of Rs.10/- each fully paid up held by the shareholders in the transferor company no.2."

12. It has been submitted by the petitioners that no investigation

proceedings under Sections 235 to 251 of the Companies Act, 1956 are

pending against the petitioner companies.

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

in their separate meetings held on 5th December, 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. 18/2015

seeking directions of this court to dispense with the requirement of

convening the meetings of their equity shareholders, preference

shareholders, secured and unsecured creditors, which are statutorily

required for sanction of the Scheme of Amalgamation. Vide order dated

3rd March, 2015, this court allowed the application and dispensed with the

requirement of convening and holding the meetings of the 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 26th

March, 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 'Business Standard' (English) and

(Hindi) Delhi 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 15th May, 2015. 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 8th June, 2015

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 29th September, 2015. Relying on

Clause 10 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 21 of the Scheme, it has been stated that the Accounting

treatment shall be as per the Accounting Standard-14 i.e. "Accounting for

Amalgamation" prescribed by the Institute of Chartered Accountants of

India in accordance with Companies (Accounting Standards) Rules,

2006. He further submitted that in Clause 15 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 affidavits dated 1st

October, 2015 of Mr. Kavin Bharti Mittal, Director 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 15th May, 2015.

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

companies no. 1 & 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.75,000/- 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 petitioner companies

states that the same is acceptable to him. Looking to the circumstances,

the petitioners shall deposit a sum of Rs.75,000/- by way of costs with the

Common Pool Fund of the Official Liquidator within two weeks.

21. The petition is allowed in the above terms.

Dasti.

SUDERSHAN KUMAR MISRA, J.

November 06, 2015