Delhi High Court
Fil India Business Services ... vs ... on 21 September, 2015
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 221/2015
Reserved on 10th September, 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:
FIL India Business Services Private Limited
Petitioner/Transferor Company
WITH
FIL Research (India) Private Limited
Petitioner/Transferee Company
Through Mr. Mahesh Aggarwal and
Mr.Rajeev Kumar, 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 FIL India Business Services Private
Limited (hereinafter referred to as the transferor company) with FIL
Research (India) 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 27th March, 2009 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 7th November, 2007 with the Registrar of
Companies, Maharashtra at Mumbai under the name and style of Fidelity
Funds Network Private Limited. The company changed its name to FIL
Funds Network Private Limited and obtained the fresh certificate of
incorporation on 11th June, 2008. The company again changed its name
to FIL Research (India) Private Limited and obtained the fresh certificate
of incorporation on 23rd May, 2012. Thereafter, the company shifted its
registered office from the State of Maharashtra to Delhi and obtained a
certificate in this regard from the Registrar of Companies, NCT of Delhi &
Haryana at New Delhi on 17th December, 2014.
5. The present authorized share capital of the transferor company is
Rs.50,00,000/- divided into 5,00,000 equity shares of Rs.10/- each. The
present issued, subscribed and paid-up share capital of the company is
Rs.1,47,130/- divided into 14,713 equity shares of Rs.10/- each fully
paid-up.
6. The present authorized share capital of the transferee company is
Rs.2,99,00,00,000/- divided into 29,90,00,000 equity shares of Rs.10/-
each. The issued, subscribed and paid-up share capital of the company
is Rs.2,43,85,39,370/- divided into 24,38,53,937 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) 39/2015, 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 claimed by
the petitioners that the amalgamation will result in reduction of
overheads, administrative and other expenditure and bring about
operational rationalization, organizational efficiency and optimal
utilization of various resources. It is further claimed that proposed
amalgamation will provide an opportunity to leverage combined assets
and capital better, build a stronger sustainable business, improve the
potential for further growth and expansion of the businesses of the two
companies.
9. So far as the share exchange ratio is concerned, the Scheme
provides that since the transferor company is a wholly owned subsidiary
of the transferee company, the transferee company shall not issue any
share or pay any consideration to the transferor company or to its
shareholders pursuant to the sanction of this Scheme.
10. It has been submitted by the petitioners that no proceedings under
Sections 235 to 251 of the Companies Act, 1956 and/or under Sections
210, 212(1) to (7) & (11) to (17), 214, 215, 216(1) & (3), 217, 219, 220,
223, 224(1), (3) & (4), and 225 of the Companies Act, 2013 are pending
against the petitioner companies.
11. The Board of Directors of the transferor and transferee companies
in their separate meetings held on 9th March, 2015 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. 39/2015
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 16th April, 2015, this court
allowed the application and dispensed with the requirement of convening
and holding the meetings of the equity shareholders of the transferor and
transferee companies, there being no secured or unsecured creditors of
the petitioner 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
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 'Business Standard' (English) and
(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 12th June, 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 24th August, 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 24th August, 2015. Relying on Clause
10.1 of Part-B 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 7 of Part-B of the Scheme, it has been stated that the transferee
company shall account for the amalgamation of the transferor company
in its books of accounts with effect from appointed date as per 'Pooling of
Interest method' as defined in the Accounting Standard-14 'Accounting
for Amalgamation' issued by the Institute of Chartered Accountants of
India. He further submitted that in Clause 16 of Part-B 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 affidavits dated
24th August, 2015 of Mr. Ameet Nayak, authorized representative of the
transferor company and of Mr. Alok Loyalka, authorized representative 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 12th June, 2015.
17. Considering the approval accorded by the equity shareholders of
the petitioner companies, there being no secured or unsecured 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, 2015, the transferor company shall stand
dissolved without undergoing the process of winding up.
18. 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 petitioners.
Learned counsel for the petitioners states that the same is acceptable to
him. Looking to the circumstances, the petitioners 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.
19. The petition is allowed in the above terms.
Dasti.
SUDERSHAN KUMAR MISRA, J.
September 21, 2015
