Delhi High Court
Ganges Concast Industries ... vs ... on 29 August, 2016
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 88/2015
Reserved on 2nd August, 2016
Date of pronouncement: 29th 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:
Ganges Concast Industries Limited
Non-petitioner/Transferor Company
WITH
Salasar Stainless Limited
Petitioner/Transferee Company
Through Mr. Rajeev K. Goel, Advocate
for the petitioners
SUDERSHAN KUMAR MISRA, J.
1. This petition has been filed under Sections 391(2) & 394 of the
Companies Act, 1956 by the petitioner/transferee company seeking
sanction of the Scheme of Amalgamation of Ganges Concast Industries
Limited (hereinafter referred to as the transferor company) with Salasar
Stainless Limited (hereinafter referred to as the petitioner/transferee
company).
2. The registered office of the petitioner/transferee company is
situated at New Delhi, within the jurisdiction of this Court. However, the
registered office of the transferor company is situated at Uttar Pradesh,
outside the jurisdiction of this court. Learned counsel for the petitioner
has submitted that a separate petition has been filed by the transferor
company in the court of competent jurisdiction seeking sanction of the
Scheme of Amalgamation in respect of the transferor company.
3. The petitioner/transferee company was incorporated under the
Companies Act, 1956 on 9th April, 2010 with the Registrar of Companies,
NCT of Delhi & Haryana at New Delhi.
4. The present authorized share capital of the petitioner/transferee
company is Rs.5,00,00,000/- divided into 50,00,000 equity shares of
Rs.10/- each. The issued, subscribed and paid up capital of the company
is Rs.4,99,90,000/- divided into 49,99,000 equity shares of Rs.10/- each.
5. Copy of the Memorandum and Articles of Association of the
petitioner/transferee company has been filed on record with the
application, being CA(M) 15/2015, earlier filed by the petitioner. The
audited balance sheet, as on 31st March, 2014, of the
petitioner/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 transferor company is a wholly owned subsidiary of
the transferee company and the proposed amalgamation would result in
business synergy, pooling of resources and consolidation of these
companies. 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.
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 shares will be issued by the transferee
company pursuant to this Scheme.
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 company.
9. The Board of Directors of the petitioner/transferee company in their
meetings held on 20th December, 2014 have unanimously approved the
proposed Scheme of Amalgamation. A copy of the Resolution passed at
the meeting of the Board of Directors of the petitioner/transferee
company has been placed on record.
10. The petitioner/transferee company had earlier filed CA (M) No.
15/2015 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 6th February, 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 petitioner/transferee company, to consider
and, if thought fit, approve, with or without modification, the proposed
Scheme of Amalgamation.
11. The petitioner/transferee company has thereafter filed the present
petition seeking sanction of the Scheme of Amalgamation. Vide order
dated 28th September, 2015, notice in the petition was directed to be
issued to the Official Liquidator and the Regional Director, Northern
Region. Citations were also directed to be published in 'Business
Standard' (English) and (Hindi) Delhi 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 24th
November, 2015. Copies of the newspaper clippings containing the
publications have been filed along with the affidavit of service.
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 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. He has further submitted that
the transferor company, which is going to be dissolved pursuant to this
Scheme is outside the jurisdiction of this Court.
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 8th 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/transferee company.
The Regional Director in para 7 of this report has submitted that the
Board of Directors of the petitioner/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 violated the provisions of Section 117(3) of the Companies Act,
2013.
14. In response to the aforesaid observation, the petitioner/transferee
company in the affidavit dated 12th July, 2016 of Mr. Alok Kumar, Director
of the petitioner/transferee company, has submitted that the petitioner
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 petitioner/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 petitioner company
for non filing of e-Form MGT-14. The undertaking given by the
petitioner/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 petitioner company.
15. No objection has been received to the Scheme of Amalgamation
from any other party. The petitioner/transferee company, in the affidavit
dated 2nd February, 2016 of Mr. Shashank Agarwal, Managing Director of
the petitioner/transferee company, has submitted that neither the
petitioner company nor its counsel have received any objection pursuant
to the citations published in the newspapers on 24th November, 2015.
16. Considering the approval accorded by the equity shareholders and
creditors of the petitioner/transferee company to the proposed Scheme of
Amalgamation and the affidavits filed by the Official Liquidator and the
Regional Director, Northern Region, 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 from the court of competent jurisdiction
in respect of the transferor company, sanction is hereby granted to the
Scheme of Amalgamation under Sections 391 and 394 of the Companies
Act, 1956. The petitioner/transferee 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. The sanction
of the Scheme will be effective from the appointed date of amalgamation,
i.e. 1st April, 2014.
17. Learned counsel for the Official Liquidator prays that costs of at
least Rs.50,000/- should be paid by the petitioner 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
02.08.2016, the petitioner shall deposit a sum of Rs.50,000/- by way of
costs with Delhi High Court Bar Association Lawyers Social Security and
Welfare Fund, New Delhi.
18. The petition is allowed in the above terms.
Dasti.
SUDERSHAN KUMAR MISRA, J.
August 29, 2016
