Delhi High Court
Matina Enterprises Private ... vs ... on 12 August, 2016
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 520/2015
Reserved on 13th July, 2016
Date of pronouncement: 12th August, 2016
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):
And
Petition under Sections 391(2) & 394 of the
Companies Act, 1956
Scheme of Amalgamation of:
Matina Enterprises Private Limited
Petitioner/Transferor Company
WITH
Proec Energy Limited
Petitioner/Transferee Company
Through Mr. Rajeev K. Goel, Advocate
for the petitioners
Ms. Aparna Mudiam, Asstt. 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(2) & 394 of
the Companies Act, 1956 by the petitioner companies seeking sanction
of the Scheme of Amalgamation of Matina Enterprises Private Limited
(hereinafter referred to as the transferor company) with Proec Energy
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 10th September, 2004 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 5th January, 1993 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of Nippon Vink Chemical Industries India Limited. The company
changed its name to Proec Energy Limited and obtained the fresh
certificate of incorporation on 23rd March, 2006.
5. The present authorized share capital of the transferor company is
Rs.24,00,000/- divided into 2,40,000 equity shares of Rs.10/- each. The
issued, subscribed and paid-up share capital of the company is
Rs.23,50,000/- divided into 2,35,000 equity shares of Rs.10/- each.
6. The present authorized share capital of the transferee company is
Rs.2,00,00,000/- divided into 20,00,000 equity shares of Rs.10/- each.
The issued, subscribed and paid-up share capital of the company is
Rs.19,00,800/- divided into 1,90,080 equity shares of Rs.10/- each.
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) 104/2015, 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 affidavits. It is submitted by
the petitioners that the transferor and transferee companies are closely
held group companies and the proposed amalgamation would result in
business synergy, consolidation and pooling of their resources. It is
claimed that the proposed amalgamation will result in usual economies of
a centralized and a large company including elimination of duplicate
work, reduction in overheads, better and more productive utilization of
human and other resources and enhancement of overall business
efficiency. It will enable these companies to combine their managerial
and operating strength, to build a wider capital and financial base and to
promote and secure overall growth of their businesses.
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 company in the following ratio:-
"01 equity share of Rs.10/- each of the transferee company,
credited as fully paid up, for every 44 equity shares of Rs.10/-
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 20th December, 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. 104/2015
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 21st July, 2015 this court
allowed the application and dispensed with the requirement of convening
and holding the meetings of the equity shareholders and creditors of the
transferor and transferee companies, there being no secured creditor of
the transferor company, 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 17th
August, 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 petitioners
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 September, 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 February,
2016 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 15th February, 2016 stating that the
Regional Director has no objection to the proposed Scheme of
Amalgamation subject to compliance of provisions of section 117(3) and
179(3) of the Companies Act, 2013 by the petitioner companies. The
Regional Director in para 7 of this report has submitted that the Board of
Directors of the transferee company have approved the proposed
Scheme in their Board meeting held on 20.12.2014. Accordingly, in terms
of provisions of Section 117(3) read with 179(3) of the Companies Act,
2013, the company is required to file such resolution (e-form MGT-14)
with the ROC within 30 days of passing the resolution whereas the
company has not yet filed the said resolution thereby prima facie violating
the provisions of Section 117(3) of the Companies Act, 2013.
16. In response to the aforesaid observation, the petitioner companies
in the affidavit dated 9th July, 2016 of Mr. Manav Modi, Director of the
transferee company, have submitted that the transferee company has
moved an application to the Central Government, Ministry of Corporate
Affairs, New Delhi seeking condonation of delay in filing e-form MGT-14
and undertakes to file the same immediately on receipt of the requisite
approval from the Central Government. It has been further submitted that
the transferee company is not the subject matter of dissolution and will
remain in existence even after the sanction of the Scheme. Therefore, if
the company fails to file the e-Form MGT-14, the ROC may initiate
appropriate proceedings against the transferee company for non filing of
e-Form MGT-14. The undertaking given by the transferee company to file
e-Form MGT-14 on receipt of approval from the Central Government is
accepted. In case of any default by the company, the ROC would be at
liberty to take appropriate action, as permissible in law, against the
transferee company.
17. No objection has been received to the Scheme of Amalgamation
from any other party. The petitioner companies, in the affidavit dated 8 th
February, 2016 of Mr. Manav Modi, 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 10th September, 2015.
18. 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 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, 2014, the transferor
company shall stand dissolved without undergoing the process of winding
up.
19. Learned counsel for the Official Liquidator prays that costs of at
least Rs.1,00,000/- should be paid by the petitioners keeping in view the
fact that the matter has involved examination of extensive records and
also prioritized hearings. Learned counsel for the petitioner company
states that the same is acceptable to him. As already directed vide order
dated 13.07.2016, the petitioners shall deposit a sum of Rs.1,00,000/- by
way of costs with the Delhi High Court Bar Association Lawyers Social
Security and Welfare Fund, New Delhi.
20. The petition is allowed in the above terms.
Dasti.
SUDERSHAN KUMAR MISRA, J.
August12, 2016
