P.D. Techspace Private Limited vs ...
2015 Latest Caselaw 6747 Del

                    IN THE HIGH COURT OF DELHI
                    COMPANY PETITION NO. 7/2015
                                        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 Sections 391(1) to 394 read
with Section 100 of the Companies Act, 1956

Scheme of Amalgamation of:

P.D. Techspace Private Limited
                                           Petitioner/Transferor Company
       WITH

Haldiram Ethnic Foods Private Limited
                                           Petitioner/Transferee Company

                                Through Mr. Ashish Middha,       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(1) to 394 read

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

seeking sanction of the Scheme of Amalgamation of P.D. Techspace

Private Limited (hereinafter referred to as the transferor company) with

Haldiram Ethnic Foods 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 was incorporated under the Companies

Act, 1956 on 10th January, 2012 with the Registrar of Companies, NCT of

Delhi & Haryana at New Delhi.

4. The transferee company was originally incorporated under the

Companies Act, 1956 on 16th September, 2003 with the Registrar of

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

style of Aesthetic Garments Private Limited. The company changed its

name to Haldiram Ethnic Foods Private Limited and obtained the fresh

certificate of incorporation on 5th March, 2012.

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

Rs.10,00,000/- divided into 1,00,000 equity shares of Rs.10/- each. The

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

Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each.

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

Rs.1,00,00,000/- divided into 10,00,000 equity shares of Rs.10/- each.

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

Rs.62,94,440/- divided into 6,29,444 equity shares of Rs.10/- each.

7. 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) 171/2014, 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.

8. 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 result in reduction in overheads and

other expenses, reduction in administrative and procedural work,

eliminate duplication of work, better and more productive utilization of

various resources and will enable the undertakings concerned to effect

internal economies and optimize productivity. It is further claimed that the

Scheme will enable the companies concerned to rationalize and

streamline their management, businesses and finances and lead to a

better and more economic control, over the running and management of

the businesses and undertakings of the said company.

9. 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 company in the following ratio:

"19 equity shares of Rs.10/- each of the transferee company, credited as fully paid up, for every 10,000 equity shares of Rs.10/- each held by the shareholders in the transferor company."

10. 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.

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

in their separate meetings held on 15th 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.

12. The petitioner companies had earlier filed CA (M) No. 171/2014

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 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 transferor and transferee companies, there

being no secured creditors of the transferor and transferee companies, to

consider and, if thought fit, approve, with or without modification, the

proposed Scheme of Amalgamation.

13. The petitioner companies have thereafter filed the present petition

seeking sanction of the Scheme of Amalgamation. Vide order dated 7th

January, 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) editions. The petitioners have filed an affidavit showing

compliance 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 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 23rd March, 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 company

do not appear to have been conducted in a manner prejudicial to the

interest of its members, creditors or public interest, as per second proviso

of Section 394(1) of the Companies Act, 1956.

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 27th April, 2015. Relying on Clause 3.2.1

of Part-III of the Scheme, he has stated that, upon sanction of the

Scheme of Amalgamation, all the employees of the transferor company

shall become the employees of the transferee company without any

break or interruption in their services. He has further submitted that in

Clause 5.3 of Part-V of the Scheme, it has been stated that the

transferee company shall account for amalgamation in accordance with

Accounting Standard-14 (Accounting for Amalgamation) prescribed under

the Companies (Accounting Standards) Rules, 2006. He further

submitted that in Clause 5.10 of the Scheme, it has been stated that

upon this scheme becoming effective, the transferor company shall stand

dissolved without the process of winding up.

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

from any other party. The petitioner companies, in the affidavit dated 24th

March, 2015 of Mr. Manohar Lal Agarwal, 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.

17. 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 having not raised 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, 2014, the transferor

company shall stand dissolved without undergoing the process of winding

up.

18. Learned counsel for the Official Liquidator prays that keeping in

view the fact that the matter has involved examination of extensive

records and also prioritized hearings costs of at least Rs.1,00,000/-

should be paid by the petitioners. Learned counsel for the petitioners

submits that he has no objection to the prayer being granted. Considering

the facts and circumstances of the case, 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.

19. The petition is allowed in the above terms.

Dasti.

SUDERSHAN KUMAR MISRA, J.

September 09, 2015