Delhi High Court
Dlf City Developers Private ... vs ... on 9 September, 2015
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 792/2014
Reserved on 28th July, 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 & 394 of the
Companies Act, 1956
Scheme of Amalgamation of:
DLF City Developers Private Limited
Petitioner/Transferor Company No. 1
Macaria Builders & Developers Private Limited
Petitioner/Transferor Company No. 2
DLF New Gurgaon Retail Developers Private Limited
Petitioner/Transferor Company No. 3
DT Real Estate Developers Private Limited
Petitioner/Transferor Company No. 4
Laman Real Estates Private Limited
Petitioner/Transferor Company No. 5
Melanctha Builders & Developers Private Limited
Petitioner/Transferor Company No. 6
Philana Builders & Developers Private Limited
Petitioner/Transferor Company No. 7
WITH
DLF Home Developers Limited
Petitioner/Transferee Company
Through Mr. Ravi Bassi, Advocate for
the petitioners
Ms. Aparna Mudiam, Assistant
Registrar of Companies for the
Regional Director
Mr. Rajiv Bahl, Advocate for the
Official Liquidator
CP 792/2014 Page 1 of 16
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 DLF City Developers Private Limited
(hereinafter referred to as the transferor company no. 1); Macaria
Builders & Developers Private Limited (hereinafter referred to as the
transferor company no. 2); DLF New Gurgaon Retail Developers Private
Limited (hereinafter referred to as the transferor company no. 3); DT Real
Estate Developers Private Limited (hereinafter referred to as the
transferor company no. 4); Laman Real Estates Private Limited
(hereinafter referred to as the transferor company no. 5); Melanctha
Builders & Developers Private Limited (hereinafter referred to as the
transferor company no. 6); and Philana Builders & Developers Private
Limited (hereinafter referred to as the transferor company no. 7) with DLF
Home Developers 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 25th April, 2007 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of Alvita Builders and Developers Private Limited. The company
changed its name to DLF Gurgaon Golflink Private Limited and obtained
the fresh certificate of incorporation on 12th March, 2012. The company
again changed its name to DLF City Developers Private Limited and
obtained the fresh certificate of incorporation on 17th August, 2012.
Thereafter, the company shifted its registered office from the State of
Haryana to Delhi and obtained a certificate in this regard on 1st
November, 2013.
4. The transferor company no. 2 was incorporated under the
Companies Act, 1956 on 30th November, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
5. The transferor company no. 3 was originally incorporated under the
Companies Act, 1956 on 13th March, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of Lacey Builders & Constructions Private Limited. The company
changed its name to DLF New Gurgaon Retail Developers Private
Limited and obtained the fresh certificate of incorporation on 31st March,
2007.
6. The transferor company no. 4 was originally incorporated under the
Companies Act, 1956 on 18th August, 2000 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of Digital Talkies Private Limited. The company changed its name to
DT Real Estate Developers Private Limited and obtained the fresh
certificate of incorporation on 5th September, 2013.
7. The transferor company no. 5 was incorporated under the
Companies Act, 1956 on 24th March, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
8. The transferor company no. 6 was incorporated under the
Companies Act, 1956 on 30th November, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
9. The transferor company no. 7 was incorporated under the
Companies Act, 1956 on 30th November, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
10. The transferee company was originally incorporated under the
Companies Act, 1956 on 29th December, 1995 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of Uppal Hotels Private Limited. The word 'Private' was deleted from
the name of the company w.e.f. 5th May, 2000. The company changed its
name to Uppal Hotels Limited and obtained the fresh certificate of
incorporation on 19th October, 2001. The company again changed its
name to DLF Home Developers Limited and obtained the fresh certificate
of incorporation on 19th June, 2004.
11. The present authorized share capital of the transferor company
no.1 is Rs.1,00,000/- divided into 10,000 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.
12. The present authorized share capital of the transferor company
no.2 is Rs.1,50,000/- divided into 15,000 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.
13. The present authorized share capital of the transferor company
no.3 is Rs.16,00,00,000/- divided into 50,000 equity shares of Rs.10/-
each aggregating to Rs.5,00,000/- and 15,95,000 redeemable preference
shares of Rs.100/- each aggregating to Rs.15,95,00,000/-. The issued,
subscribed and paid-up share capital of the company is
Rs.16,00,00,000/- divided into 50,000 equity shares of Rs.10/- each
aggregating to Rs.5,00,000/- and 15,95,000 redeemable preference
shares of Rs.100/- each aggregating to Rs.15,95,00,000/-.
14. The present authorized share capital of the transferor company
no.4 is Rs.1,00,00,000/- divided into 1,50,000 equity shares of Rs.10/-
each aggregating to Rs.15,00,000/-; and 85,000 12% non-cumulative
redeemable preference shares of Rs.100/- each aggregating to
Rs.85,00,000/-. The issued, subscribed and paid-up share capital of the
company is Rs.91,54,300/- divided into 78,630 equity shares of Rs.10/-
each aggregating to Rs.7,86,300/-; and 83,680 12% non-cumulative
redeemable preference shares of Rs.100/- each aggregating to
Rs.83,68,000/-.
15. The present authorized share capital of the transferor company
no.5 is Rs.1,00,000/- divided into 10,000 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.
16. The present authorized share capital of the transferor company
no.6 is Rs.3,00,00,000/- divided into 30,00,000 equity shares of Rs.10/-
each. The issued, subscribed and paid-up share capital of the company
is Rs.3,00,00,000/- divided into 30,00,000 equity shares of Rs.10/- each.
17. The present authorized share capital of the transferor company
no.7 is Rs.1,50,000/- divided into 15,000 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.
18. The present authorized share capital of the transferee company is
Rs.77,40,55,20,000/- divided into 3,34,94,52,000 equity shares of Rs.10/-
each aggregating to Rs.33,49,45,20,000/- and 43,91,10,000 preference
shares of Rs.100/- each aggregating to Rs.43,91,10,00,000/-. The
issued, subscribed and paid-up share capital of the company is
Rs.9,26,65,38,390/- divided into 4,12,13,839 equity shares of Rs.10/-
each aggregating to Rs.41,21,38,390/- and 8,85,44,000 redeemable
preference shares of Rs.100/- each aggregating to Rs.8,85,44,00,000/-.
19. 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) 134/2014, 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.
20. 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 and the transferee company
are direct or indirect subsidiaries of one holding company i.e. DLF
Limited, which is not part of the Scheme of Amalgamation. It is claimed
that the amalgamation will enable the petitioner companies to pool their
financial, commercial and other resources into one company with
sufficient cost reduction, control and administrative efficiency. It is further
claimed that with enhanced capabilities and resources at its disposal, the
transferee company will have greater flexibility and strength and will be
able to compete more effectively as an efficient entity.
21. So far as the share exchange ratio is concerned, the Scheme
provides that since all the transferor companies are direct or indirect
subsidiaries of the transferee company, therefore, the entire share capital
of all the transferor companies shall automatically stand cancelled and
extinguished, upon sanction of the Scheme and the transferee company
shall not allot any shares to the shareholders of the transferor
companies.
22 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.
23. The Board of Directors of the transferor companies no. 1, 2, 3, 4, 5,
6 & 7 and transferee company in their separate meetings held on 28th
May, 2014, 27th May, 2014, 23rd May, 2014, 28th May, 2014, 26th May,
2014, 28th May, 2014, 27th May, 2014 and 29th May, 2014 respectively
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.
24. The petitioner companies had earlier filed CA (M) No. 134/2014
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 26th September, 2014, this
court allowed the application and dispensed with the requirement of
convening and holding the meetings of the equity shareholders of the
transferor company no. 1 and the transferee company; and equity
shareholders and unsecured creditors of the transferor companies no. 2
to 7; there being no secured creditors of the transferor companies, and
directed convening of separate meetings of the unsecured creditors of
the transferor company no. 1 and the transferee company, to consider
and, if thought fit, approve, with or without modification, the proposed
Scheme of Amalgamation. The Court further directed the petitioner
companies to produce the consent letters of the secured creditors of the
transferee company before the Chairman and Co-chairman at the time of
the meeting of the unsecured creditors of the transferee company. The
Court further directed that in case the said consent is not accompanied
with the Board Resolution of the corporate entities that comprise the
secured creditors, individual notices shall be issued to the said secured
creditors at the time of moving of the second motion calling for their
objection, if any, to the Scheme.
25. The Chairpersons of the ordered meetings of the unsecured
creditors of the transferor company no. 1 and the transferee company
have filed their reports stating that the meetings were duly held on 29th
November, 2014, as directed, and that the Scheme of Amalgamation has
been approved unanimously by the unsecured creditors of the transferor
company no. 1 and the transferee company, present and voting, in their
respective meetings.
26. The petitioner companies have thereafter filed the present petition
seeking sanction of the Scheme of Amalgamation. Vide order dated 17th
December, 2014, 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
'Veer Arjun' (Hindi) 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 10th February,
2015. Copies of the newspaper clippings containing the publications have
been filed along with the said affidavit.
27. 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 24th July, 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.
28. The Official Liquidator in Para 37 of his report has observed as
under:
"37. That as per the reply submitted by the petitioners
transferor companies the details of pending assessment and
disputed liabilities are as follows:
(i) Appeal CIT (A) for Assessment Year 2012-13 is
pending in the case of DLF New Gurgaon Retail
Developers Pvt. Ltd. and Assessment for Assessment
Year 2013-14 is also pending.
(ii) In the case of Laman Real Estates Pvt. Ltd. Demand
was raised of Rs.4,45,300/- for the Assessment Year
2013-14 as per intimation u/s 143(1) of the Income
Tax Act.
(iii) In the case of Philana Builders & Developers Pvt. Ltd.,
appeal is pending with ITAT for Assessment Year
2007-08 u/s 271 for Rs.32,12,500/- and
Rs.42,70,155/- u/s 143(3). Rs.42,70,155/- was
deposited under protest.
In view of the above it is respectfully submitted that liberty
may kindly be given to the income tax department to assess
against the liability which is payable by the transferor
companies shall be paid by the transferee company and
none of the provisions made in the Scheme shall affect the
income tax liability of the companies including as arising
from the present Scheme."
29. In response to the aforesaid objection, counsel for the petitioners
undertakes on behalf of the transferee company that in case any liability,
which is assessed and payable by the transferor companies to the
Income Tax Authorities, the same shall be paid by the transferee
company; and further that none of the provisions made in the Scheme
shall prejudice the income-tax dues and that department shall be free to
recover the same from the transferee company. Learned counsel has
also placed on record an affidavit dated 3rd August, 2015 of Mr. Ankur
Jain, authorized signatory of the transferee company whereby the
transferee company has undertaken that in case of any tax liability, which
was assessed and payable by the transferor companies to the Income
Tax Authorities, the same shall be paid by the transferee company. This
undertaking is accepted by the Court and the applicant companies,
including the transferor companies, shall remain bound by the same. In
view of the above, the objection raised by the Official Liquidator stands
satisfied.
30. 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 May, 2015. Relying on Clause 7 of
Part-IV 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 Clauses
4.10 of Part-IV of the Scheme, it has been stated that the transferee
company shall follow the Accounting Standards and Principles as
provided in Accounting Standard-14 issued by Institute of Chartered
Accountants of India. He further submitted that in Clause 16.3.1 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.
31. The Regional Director in para 14 of his report has referred to
Clause 22 of Part-IV of the Scheme, wherein it has been stated that in
the event, any of the sanctions and approvals referred to elsewhere in
the Scheme is not being obtained and/or the Scheme not being
sanctioned by the High Court and/or the order or orders are not being
passed as aforesaid before 31.03.2015 or within such period(s) as may
be agreed to from time to time and without any limitation by the
transferee company and the transferor companies by their respective
Board of Directors. He, therefore, submits that from the said clause of the
Scheme, it is not clear as to whether the Board of Directors of the
transferor and transferee companies have agreed for extension of the
date after 31.03.2015. He, thus, prays that the petitioner companies may
be directed to state whether they have extended the Scheme, if any,
before the Scheme is allowed, if not, the Scheme may kindly be treated
as null and void. A similar objection has also been raised by the Official
Liquidator in para 38 of his report.
32. In response to the aforesaid objections of the Regional Director,
Northern Region and the Official Liquidator, learned counsel for the
petitioners has submitted that the appropriate fresh resolutions have
been passed by all the companies concerned extending the date to
31.03.2016. Copies of the Board Resolutions of the petitioner companies
extending the date of the Scheme from 31.03.2015 to 31.03.2016 have
been placed on record. In view of the aforesaid, the objections raised by
the Regional Director, Northern Region and the Official Liquidator stand
satisfied.
33. No objection has been received to the Scheme of Amalgamation
from any other party. Learned counsel 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 10th February, 2015.
34. Considering the approval accorded by the equity shareholders and
creditors of the petitioner companies to the proposed Scheme of
Amalgamation and there being no surviving objection to the same by the
Regional Director, Northern Region, and the Official Liquidator, 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 January, 2013, the transferor companies no. 1 to 7 shall stand
dissolved without undergoing the process of winding up.
35. Learned counsel for the Official Liquidator prays that costs may be
imposed on the petitioner companies in view the fact that the matter has
involved examination of voluminous record and prioritized hearings. He
submits that cost of at least Rs.1,00,000/- be imposed. Learned counsel
for the petitioners states that the petitioner companies are ready and
willing to pay cost of Rs.1,00,000/-. Looking to the circumstances, the
petitioner companies shall deposit cost of Rs.1,00,000/- in the Common
Pool Fund of the Official Liquidator within two weeks from today.
36. The petition is allowed in the above terms.
Dasti.
SUDERSHAN KUMAR MISRA, J.
September 09, 2015
