Sundeep Import Export Private ... vs ...
2015 Latest Caselaw 7188 Del

                   IN THE HIGH COURT OF DELHI
              COMPANY APPLICATION (MAIN) NO. 149/2015
                                   Reserved on 11th 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
Application under Sections 391 to 394 of the
Companies Act, 1956
Scheme of Amalgamation of:
Sundeep Import Export Private Limited
                                           Applicant/Transferor Company
       WITH
Newgen Software Technologies Limited
                                  Non-Applicant/Transferee Company
                               Through Mr. Saurabh Kalia, Advocate
                               for the applicants
SUDERSHAN KUMAR MISRA, J.

1. This application has been filed under Sections 391 to 394 of the

Companies Act, 1956 by the applicant/transferor company seeking

directions of this court to dispense with the requirement of convening the

meetings of their equity shareholders, secured and unsecured creditors

to consider and approve, with or without modification, the proposed

Scheme of Amalgamation of Sundeep Import Export Private Limited

(hereinafter referred to as the applicant/transferor company) with

Newgen Software Technologies Limited (hereinafter referred to as the

transferee company) and to dispense with the requirement of the

transferee company to approach this Court for seeking sanction of

Scheme of Amalgamation.

2. The registered offices of the applicant/transferor company and the

transferee company are situated at New Delhi, within the jurisdiction of

this Court.

3. The applicant/transferor company was originally incorporated

under the Companies Act, 1956 on 26th March, 1972 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi under the name and

style of Sundeep Import Export Private Limited. The word 'Private' was

deleted from the name of the company w.e.f. 31.03.2000. The company

changed its name to Sundeep Import Export Private Limited and

obtained the fresh certificate of incorporation on 24th March, 2015.

4. The present authorized share capital of the applicant/transferor

company is Rs.5,00,000/- divided into 5,000 equity shares of Rs.100/-

each aggregating. The present issued, subscribed and paid-up share

capital of the company is Rs.5,00,000/- divided into 5,000 equity shares

of Rs.100/- each aggregating.

5. A copy of the Memorandum and Articles of Association of the

applicant/transferor company has been filed on record. The audited

balance sheet, as on 31st March, 2015, of applicant/transferor company,

along with the report of the auditors, has 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 application and the accompanying affidavit. It is claimed

by the applicant that the proposed amalgamation will reduce managerial

overlap, reduce administrative cost and strengthened leadership in the

industry, in terms of asset base and revenue. It is further claimed that the

proposed amalgamation will improve organizational capabilities and

leadership, arising from pooling of assets, human capital and technical

resources to compete successfully in an increasingly competitive

industry.

7. 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, no consideration shall be payable by the

transferee company pursuant to the amalgamation of the transferor

company with the transferee company, and accordingly the entire

investment in the transferor company held by the transferee company

would stand cancelled.

8. It has been submitted by the applicants that no proceedings under

Sections 235 to 251 of the Companies Act, 1956 are pending against the

applicant/transferor company and the transferee company.

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

in their separate meetings held on 17th July, 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.

10. The applicant/transferor company has 07 equity shareholders and

01 unsecured creditor. All the equity shareholders and the sole

unsecured creditor have given their consents/no objections in writing to

the proposed Scheme of Amalgamation. Their consents/no objections

have been placed on record. They have been examined and found in

order. In view thereof, the requirement of convening the meetings of the

equity shareholders and unsecured creditor of the applicant/transferor

company to consider and, if thought fit, approve, with or without

modification, the proposed Scheme of Amalgamation is dispensed with.

There is no secured creditor of the applicant/transferor company, as on

24th July, 2015.

11. The applicant also seeks dispensation of requirement of the

transferee company to approach this Court for sanction of Scheme of

Amalgamation under Sections 391-394 of the Companies Act, 1956 on

the ground that the Scheme does not entail or involve any arrangement

between the transferee company and its shareholders since the

transferor company is a wholly owned subsidiary of the transferee

company no new shares will be issued by the transferee company in lieu

of the shares of the transferor company; and there will be no change in

the control and management of the transferee company, therefore, the

rights of the shareholders of the transferee company will not be affected

in any manner whatsoever by the Scheme. It is further submitted that the

present Scheme does not envisage any compromise or arrangement by

the transferee company with their creditors and that the assets of both

the companies are more than sufficient to meet their respective and

combined aggregate liabilities towards their respective creditors,

therefore, the rights of the creditors of the transferee company will not be

adversely affected. Learned counsel has also placed on record the

certificate issued by Singal & Company, Chartered Accountants, showing

the pre and post amalgamation net worth of the transferee company

showing that the net worth of the transferee company, post

amalgamation, will be increased from Rs.20,107.10 lacs to Rs.20,167.66

lacs.

12. In support of his submissions, learned counsel placed reliance on

the judgment of this Court in CA(M) 29/2015 titled as Satyam Cineplexes

Limited with Inox Leisure Limited wherein this court under similar

circumstances, and relying on the judgments of several High Courts

including this Court in many cases such as eMeter India Pvt. Ltd.;

(CA(M) 179/2012) Auto Tools India Pvt. Ltd. [CA(M) 41/2010], Sharat

Hardware Industries Pvt. Ltd. (1978), 48 Com.Cas 23 (Delhi),

Mahaamba Investments Ltd. V. IDI Limited (2001) 105 Com Cas. 16

(Bom.), Andhra Bank Housing Finance Ltd. (2004) 118 Com.Cas.

295(AP) and Prosell Field Marketing Pvt. Ltd. [CA(M) 63/2012], had

dispensed with the requirement of the transferee company to approach

the High Court of Gujarat under Section 391(2) of the Companies Act,

1956 for sanction of the Scheme of Amalgamation.

13. I have considered the aforesaid case law cited at the Bar, wherein

the transferee company, being the holding company, has been granted

exemption from taking out separate proceedings under Section 391(2) of

the Companies Act, 1956. In view of the settled legal position and

considering the Scheme of Amalgamation, the requirement of the

transferee company having to approach this Court under Section 391(2)

of the Companies Act, 1956 for sanction of the Scheme of Amalgamation

is dispensed with.

14. The application stands allowed in the aforesaid terms.

Dasti

SUDERSHAN KUMAR MISRA, J.

September 21, 2015