Om Jee Snacks Private Limited vs ...
2015 Latest Caselaw 6859 Del

                   IN THE HIGH COURT OF DELHI
                  COMPANY PETITION NO. 48/2015
                                      Reserved on 13th August, 2015
                        Date of pronouncement: 11th 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:

Om Jee Snacks Private Limited
                                          Petitioner/Transferor Company
      WITH

Om Sweets 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 Om Jee Snacks

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

Om Sweets 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 29th March, 2004 with the Registrar of Companies, NCT of

Delhi & Haryana at New Delhi.

4. The transferee company was incorporated under the Companies

Act, 1956 on 31st July, 2000 with the Registrar of Companies, NCT of

Delhi & Haryana at New Delhi.

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 capital of the company is Rs.3,00,000/-

divided into 30,000 equity shares of Rs.10/- each fully paid-up.

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

Rs.50,00,000/- divided into 5,00,000 equity shares of Rs.10/- each. The

issued, subscribed and paid up capital of the company is Rs.50,00,000/-

divided into 5,00,000 equity shares of Rs.10/- each fully paid-up.

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) 3/2015, 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.

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 submitted by

the petitioners that the proposed scheme will result in formation of a

larger company enabling further growth and development of the business

of the said company thus enabling the said company to obtain greater

facilities possessed and enjoyed by one large company compared to a

small company for raising capital, securing and conducting trade and

business on favourable terms and other related benefits. 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.

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 companies in the following ratio:-

"279 equity share of Rs.10/- each of the transferee company, credited as fully paid up, for every 100 equity shares of Rs.10/- each held 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

petitioner companies.

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

in their separate meetings held on 15th 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.

12. The petitioner companies had earlier filed CA (M) No. 3/2015

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 20th January, 2015, this

court allowed the application and dispensed with the requirement of

convening and holding the meetings of the equity shareholders, secured

and unsecured 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 3rd

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) editions. The petitioners have filed an affidavit showing

compliance regarding publication of citations in the aforesaid newspapers

on 25th March, 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 8th 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 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 14th July, 2015. Relying on Clause 3.21

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.

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

from any other party. The petitioner companies, in the affidavit dated 14th

July, 2015 of Mr. Om Parkash Kathuria, 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 March, 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, 2015, 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 petitioner. Learned counsel for the petitioner

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

the facts and circumstances of the case, petitioner 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 11, 2015