Delhi High Court
Magic Tradelink Private Limited vs ... on 9 September, 2015
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 25/2015
Reserved on 7th 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 to 394 of the
Companies Act, 1956
Scheme of Amalgamation of:
Magic Tradelink Private Limited
Petitioner/Transferor Company No. 1
Vikas Polymerland Private Limited
Petitioner/Transferor Company No. 2
WITH
Moonlite Technochem Private Limited
Petitioner/Transferee Company
Through Ms. Maneesha Dhir, Mr.
Hemant Sharma & Mr. Milan Singh
Negi, 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 to 394 of the
Companies Act, 1956 by the petitioner companies seeking sanction of
the Scheme of Amalgamation of Magic Tradelink Private Limited
(hereinafter referred to as the transferor company no. 1) and Vikas
Polymerland Private Limited (hereinafter referred to as the transferor
company no. 1) with Moonlite Technochem 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 originally incorporated under
the Companies Act, 1956 on 31st July, 1987 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of Jai Ganesh Chit Fund Private Limited. The company changed its
name to Magic Tradelink Private Limited and obtained the fresh
certificate of incorporation on 6th August, 2010.
4. The transferor company no. 2 was originally incorporated under
the Companies Act, 1956 on 17th August, 2005 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of Moonlite Petro Products Private Limited. The company changed
its name to Vikas Polymerland Private Limited and obtained the fresh
certificate of incorporation on 21st October, 2009.
5. The transferee company was originally incorporated under the
Companies Act, 1956 on 9th November, 1995 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of Akshatha Management Consultants Private Limited. The
company changed its name to Akshatha Services Private Limited and
obtained the fresh certificate of incorporation on 29th May, 2001. The
company again changed its name to Moonlite Technochem Private
Limited and obtained the fresh certificate of incorporation on 29th
December, 2008.
6. The present authorized share capital of the transferor company
no.1 is Rs.15,00,000/- divided into 15,000 equity shares of Rs.100/-
each. The present issued, subscribed and paid-up share capital of the
company is Rs.13,80,000/- divided into 13,800 equity shares of Rs.100/-
each.
7. The present authorized share capital of the transferor company
no.2 is Rs.25,00,000/- divided into 2,50,000 equity shares of Rs.10/-
each. The present issued, subscribed and paid-up share capital of the
company is Rs.10,50,000/- divided into 1,05,000 equity shares of Rs.10/-
each.
8. The present authorized share capital of the transferee company is
Rs.4,50,00,000/- divided into 45,00,000 equity shares of Rs.10/- each.
The present issued, subscribed and paid-up share capital of the
company is Rs.3,14,91,400/- divided into 31,49,140 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) 155/2014, earlier filed by the petitioners.
The audited balance sheets, as on 31st March, 2012, 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 petitioner companies are directly or indirectly
connected to the business of dealing in petrochemical products and their
amalgamation will increase the valuation of their business and also result
in optimum utilization of capital, assets and facilities. It is claimed that the
proposed merger will lead to focused leadership and management
attention and shall increase their financial strength.
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:-
"645 equity share of Rs.10/- each at a premium of Rs.7/- each
in the transferee company for every 01 (one) equity share of
Rs.100/- each held in the transferor company no. 1."
"148 equity share of Rs.10/- each at a premium of Rs.7/- each
in the transferee company for every 01 (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 19th September, 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. 155/2014
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 10th November, 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 companies, there being no secured
creditors of the transferor companies, and equity shareholders of the
transferee company, there being no unsecured creditors of the transferee
company, and directed convening of a meeting of the secured creditors
of the transferee company, to consider and, if thought fit, approve, with or
without modification, the proposed Scheme of Amalgamation.
15. The Chairperson of the ordered meeting of the secured creditors of
the transferee company have filed her report stating that the meeting was
duly held on 20th December, 2014, as directed, and that the Scheme of
Amalgamation has been approved unanimously by the secured creditors
of the transferee company, present and voting, in the meeting.
16. The petitioner companies have thereafter filed the present petition
seeking sanction of the Scheme of Amalgamation. Vide order dated 21st
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 'Statesman' (English) and 'Jansatta'
(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 4th February, 2015. Copies of
the newspaper clippings containing the publications have been filed
along with the affidavit of service.
17. 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 5th May, 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.
18. 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 6th May, 2015. Relying on Clause 2.18 of
Part-II 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 1.1
of Part-IV of the Scheme, it has been stated that the amalgamation would
be accounted for by applying the 'Purchase method' of accounting as
contained in Accounting Standard-14 issued by the Institute of Chartered
Accountants of India. He further submitted that in Clause 3 of Part-IV 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.
19. No objection has been received to the Scheme of Amalgamation
from any other party. The petitioner companies, in the affidavit dated 7th
May, 2015 of Sh. Vikas Garg, authorized signatory 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 4th February, 2015.
20. 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, 2014, the transferor
companies no. 1 & 2 shall stand dissolved without undergoing the
process of winding up.
21. 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 her. 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.
22. The petition is allowed in the above terms.
Dasti.
SUDERSHAN KUMAR MISRA, J.
September 09, 2015
