Delhi High Court
Zf Components Investment Private ... vs ... on 21 September, 2015
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 275/2015
Reserved on 18th August, 2015
Date of pronouncement: 21st September, 2015
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):
And
Petition under Sections 391 to 394 of the
Companies Act, 1956
Scheme of Amalgamation of:
ZF Components Investment Private Limited
Petitioner/Transferor Company
WITH
ZF India Private Limited
Non-Petitioner/Transferee Company
Through Mr. Abhishek Seth, 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 petition has been filed under Sections 391 to 394 of the
Companies Act, 1956 by the petitioner/transferor company seeking
sanction of the Scheme of Amalgamation of ZF Components Investment
Private Limited (hereinafter referred to as the petitioner/transferor
company) with ZF India Private Limited (hereinafter referred to as the
transferee company).
2. The registered office of the petitioner/transferor company is
situated at New Delhi, within the jurisdiction of this Court. However, the
registered office of the transferee company is situated at Maharashtra,
outside the jurisdiction of this Court. Learned counsel for the petitioner
submitted that a separate petition will be filed by the transferee company
in the court of competent jurisdiction for sanction of the Scheme of
Amalgamation in respect of the transferee company.
3. The petitioner/transferor company was originally incorporated
under the Companies Act, 1956 on 28th March, 2001 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of Sona Investment Limited. The company changed its name to
Sona Investment Private Limited and obtained the fresh certificate of
incorporation on 25th July, 2005. The company again changed its name
to ZF Components Investment Private Limited and obtained the fresh
certificate of incorporation on 23rd July, 2013.
4. The present authorized share capital of the petitioner/transferor
company is Rs.25,00,000/- divided into 1,50,000 Class 'A' equity shares
of Rs.10/- each aggregating to Rs.15,00,000/- and 1,00,000 Class 'B'
equity shares of Rs.10/- each aggregating to Rs.10,00,000/-. The present
issued, subscribed and paid-up share capital of the company is
Rs.7,36,500/- divided into 36,455 Class 'A' equity shares of Rs.10/- each
aggregating to Rs.3,64,550/- and 37,195 Class 'B' equity shares of
Rs.10/- each aggregating to Rs.3,71,950/-.
5. Copies of the Memorandum and Articles of Association of the
petitioner/transferor company and the transferee company have been
filed on record with the application, being CA(M) 44/2015, earlier filed by
the petitioner. The audited balance sheets, as on 31st March, 2014, of
petitioner/transferor company and the transferee company, along with the
report of the auditors, had also been filed.
6. 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 petitioner that the amalgamation will enable pooling of resources of
the companies to their common advantage resulting in more productive
utilization of the said resources, faster and effective decision making and
its implementation, cost and operational efficiencies, which would be
beneficial to all the stakeholders. It is further claimed that the
amalgamation would result in improving the net worth of the transferee
company enabling further growth and development of the business of the
transferee company.
7. So far as the share exchange ratio is concerned, the Scheme
provides that the entire issued, subscribed and paid-up share capital of
the petitioner/transferor company is held by the transferee company
along with its nominee. Therefore, no shares of the transferee company
shall be allotted in lieu or exchange of its holding in the transferor
company and the share capital of the transferor company shall stand
cancelled.
8. It has been submitted by the petitioner that no proceedings under
Sections 235 to 251 of the Companies Act, 1956 are pending against the
petitioner/transferor company.
9. The Board of Directors of the petitioner/transferor company and the
transferee company in their separate meetings held on 30th August, 2014
and 23rd 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 petitioner/transferor
company and the transferee company have been placed on record.
10. The petitioner/transferor company had earlier filed CA (M) No.
44/2015 seeking directions of this court to dispense with the requirement
of convening the meetings of its equity shareholders, secured and
unsecured creditors, which are statutorily required for sanction of the
Scheme of Amalgamation. Vide order dated 29th April, 2015, this court
allowed the application and dispensed with the requirement of convening
and holding the meeting of the equity shareholders of the
petitioner/transferor company, there being no secured or unsecured
creditor of the petitioner/transferor company, to consider and, if thought
fit, approve, with or without modification, the proposed Scheme of
Amalgamation.
11. The petitioner/transferor company has thereafter filed the present
petition seeking sanction of the Scheme of Amalgamation. Vide order
dated 18th May, 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 'Indian Express' (English)
and 'Jansatta' (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 14th July, 2015.
Copies of the newspaper clippings containing the publications have been
filed along with the said affidavit.
12. 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 28th 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.
13. 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 10th August, 2015. Relying on Clause 8.1
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 15.3
of the Scheme, it has been stated that upon the Scheme becoming
effective, the transferee company shall account for the amalgamation of
the transferor company as per the pooling of interest method of
accounting stipulated by Accounting Standard-14 Accounting for
Amalgamation as stated in the Companies (Accounting Standards)
Rules, 2006. He further submitted that in Clause 16.1 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.
14. No objection has been received to the Scheme of Amalgamation
from any other party. The petitioner company in the affidavit dated 14th
August, 2015 of Mr. T.H. Gopalakrishnan, authorized signatory of the
petitioner/transferor company has submitted that neither the petitioner
company nor their counsel have received any objection pursuant to the
citations published in the newspapers on 14th July, 2015.
15. Considering the approval accorded by the equity shareholders of
the petitioner company to the proposed Scheme of Amalgamation, there
being no secured or unsecured creditors of the petitioner company, 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, subject to
sanction of the Scheme of Amalgamation in respect of the transferee
company from the court of competent jurisdiction, sanction is hereby
granted to the Scheme of Amalgamation under Sections 391 and 394 of
the Companies Act, 1956. The petitioner company 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.
16. Learned counsel for the Official Liquidator prays that costs may
also be imposed keeping in view the fact that the matter has involved
examination of extensive records and prioritized hearings. He submits
that at least costs of Rs.1,00,000/- should be paid by the petitioner.
Learned counsel for the petitioner states that the same is acceptable to
him. Looking to the circumstances, the petitioner shall deposit a sum of
Rs.1,00,000/- by way of costs in the Common Pool Fund of the Official
Liquidator, within two weeks.
17. The petition is allowed in the above terms.
Dasti.
SUDERSHAN KUMAR MISRA, J.
September 21, 2015
