Delhi High Court
Inter Alliance Consultants ... vs .... on 9 September, 2015
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 63/2015
Reserved on 6th August, 2015
Date of pronouncement: 9th September, 2015
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):
And
Petition under Section 391(2) & 394 of the
Companies Act, 1956
Scheme of Amalgamation of:
Inter Alliance Consultants Private Limited
Petitioner/Transferor Company No. 1
Raffle Fabrics Private Limited
Petitioner/Transferor Company No. 2
WITH
J.A. Textiles Private Limited
Petitioner/Transferee Company
Through Mr. Mukesh Sukhija,
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) & 394 of
the Companies Act, 1956 by the petitioner companies seeking sanction
of the Scheme of Amalgamation of Inter Alliance Consultants Private
Limited (hereinafter referred to as the transferor company no. 1) and
Raffle Fabrics Private Limited (hereinafter referred to as the transferor
company no. 2) with J.A. Textiles 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 3rd December, 1999 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
4. The transferor company no. 2 was originally incorporated under
the Companies Act, 1956 on 24th October, 1994 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of Complete Financial Services Private Limited. The company
changed its name to Raffle Fabrics Private Limited and obtained the
fresh certificate of incorporation on 31st August, 2005.
5. The transferee company was incorporated under the Companies
Act, 1956 on 28th March, 2003 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.5,00,000/- divided into 50,000 equity shares of Rs.10/- each.
The present issued, subscribed and paid-up share capital of the
company is Rs.4,90,200/- divided into 49,020 equity shares of Rs.10/-
each.
7. The present authorized share capital of the transferor company
no.2 is Rs.3,00,000/- divided into 30,000 equity shares of Rs.10/- each.
The present issued, subscribed and paid-up share capital of the
company is Rs.1,00,200/- divided into 10,020 equity shares of Rs.10/-
each.
8. The present authorized share capital of the transferee company is
Rs.2,75,00,000/- divided into 5,00,000 equity shares of Rs.10/- each
aggregating to Rs.50,00,000/-; and 22,50,000 preference shares of
Rs.10/- each aggregating to Rs.2,25,00,000/-. The present issued,
subscribed and paid-up share capital of the company is Rs.29,35,620/-
divided into 2,93,562 equity shares of Rs.10/-.
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) 10/2015, earlier filed by the petitioners.
The audited balance sheets, as on 31st March, 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 submitted by
the petitioners that the transferor companies no. 1 & 2 are presently not
having any business other than investment of idle fund. It is claimed that
the proposed amalgamation would result in business synergy and
consolidation of these companies into one large company with a stronger
asset base. 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 human and other resources and enhancement of
overall business efficiency. It will enable these companies to combine
their managerial and operating strength, to build a wider capital and
financial base and to promote and secure overall growth of their
businesses.
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:-
"3.20 equity share of Rs.10/- each of the transferee company
credited as fully paid-up for every 1 (one) equity share of
Rs.10/- each held in the transferor company no. 1."
"11.50 equity share of Rs.10/- each of the transferee company
credited as fully paid-up for every 1 (one) equity share of
Rs.10/- each held in the 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
petitioner companies.
13. The Board of Directors of the transferor and transferee companies
in their separate meetings held on 21st October, 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. 10/2015
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 28th January, 2015, this
court allowed the application and dispensed with the requirement of
convening and holding the meetings of the equity shareholders and
creditors of the transferor and transferee 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 6th
February, 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 petitioners
showing compliance regarding service on the Regional Director, Northern
Region and the Official Liquidator, and also regarding publication of
citations in the aforesaid newspapers on 25th February, 2015. Copies of
the newspaper clippings containing the publications have been filed
along with the affidavit of service.
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 9th 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 21st July, 2015. Relying on Clause 8(a)
of Section D 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 15(a) of Section G of the Scheme, it has been stated that
amalgamation shall be an 'amalgamation in the nature of merger' as
defined in Accounting Standard-14 issued by the Institute of Chartered
Accountants of India and shall be accounted for under the 'pooling of
interest' method in accordance with the said AS-14. He further submitted
that in Clause 10 of Section E 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
20th July, 2015 of Sh. Vivek Kumar, Director of the transferor company
no.1; Ms. Parul Nagpal, Director of the transferor company no. 2; and
Mr.Mukesh Malik, Director of the transferee company, have submitted
that neither the petitioner companies nor their counsel have received any
objection pursuant to the citations published in the newspapers on 25th
February, 2015.
19. Considering the approval accorded by the equity 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 April, 2015, 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.1,00,000/- 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.1,00,000/- 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.
September 09, 2015
