Delhi High Court
Uzanto Consulting India Private ... vs ... on 29 August, 2016
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 391/2015
Reserved on 19th July, 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 to 394 of the
Companies Act, 1956
Scheme of Amalgamation of:
Uzanto Consulting India Private Limited
Petitioner/Transferor Company
WITH
LinkedIn Technology Information Private Limited
Petitioner/Transferee Company
Through Mr. Amit Kumar Mishra,
Mr.Shashank Gautam, Mr. Aditya S.,
Ms. Akansha Sharma and Mr. Nitin
Wadhwa, Advocates 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 to 394 of the
Companies Act, 1956 by the petitioner companies seeking sanction of
the Scheme of Amalgamation of Uzanto Consulting India Private Limited
(hereinafter referred to as the transferor company) with LinkedIn
Technology Information 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 2nd June, 2004 with the Registrar of Companies, NCT of
Delhi & Haryana at New Delhi.
4. The transferee company was incorporated under the Companies
Act, 1956 on 31st December, 2009 with the Registrar of Companies, NCT
of Delhi & Haryana at New Delhi.
5. The present authorized share capital of the transferor company is
Rs.10,00,000/- divided into 1,00,000 equity shares of Rs.10/- each. The
issued, subscribed and paid up capital of the company is Rs.6,00,010/-
divided into 60,001 equity shares of Rs.10/- each.
6. The present authorized share capital of the transferee company is
Rs.50,00,00,000/- divided into 5,00,00,000 equity shares of Rs.10/- each.
The issued, subscribed and paid up capital of the company is
Rs.1,19,47,440/- divided into 11,94,744 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) 22/2015, 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 that
the proposed amalgamation would result in pooling of resources of the
entities to their common advantage, resulting in more productive
utilization of the resources, costs and operational efficiencies, faster and
effective decision making and its implementation, which would be
beneficial for all stakeholders. It is further claimed that the proposed
amalgamation would result in economies of scale, reduction in overheads
and other expenses.
9. So far as the share exchange ratio is concerned, the Scheme
provides that transferee company will not issue any shares to the
shareholders of the transferor company as the transferor company is a
wholly owned subsidiary of the transferee company and all the equity
shares held by the transferee company in the transferor company will be
cancelled upon the Scheme becoming finally effective.
10. It has been submitted by the petitioners that no proceedings under
Sections 235 to 250A 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 14th November, 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. 22/2015
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 May, 2015, this court
allowed the application and dispensed with the requirement of convening
and holding the meetings of the equity shareholders and unsecured
creditors of the transferor and transferee companies, there being no
secured 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 1st
July, 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 'Times of India' (English) and
'Jansatta' (Hindi) editions. An affidavit has been filed by the petitioner
showing compliance regarding publication of citations in the aforesaid
newspapers on 10th August, 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 23rd 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 2nd March, 2016 not raising any objection
to the proposed Scheme of Amalgamation. However, in para 7 of his
report, the Regional Director has made the following observations:
(a) Para 5 of the petition provides that as on 14.11.2014, the paid
up share capital of the transferee company is Rs.1,19,47,440/-
whereas as per e-records maintained under MCA-21, the paid
up share capital of the said company is Rs.1,00,00,000/- as the
company has not yet filed PAS-3 in terms of the provisions of
Section 39(4) of the Companies Act, 2013 with regard to
increase in its paid up share capital from Rs.1,00,00,000/- to
Rs.1,19,47,440/-. Thus, there is a prima facie violation of
Section 39(4) of the Companies Act, 2013;
(b) In para 4.2 of the proposed Scheme, the paid up share capital
of the transferee company is wrongly shown as
Rs.28,00,00,000/-; and
(c) The transferee company has not filed its due Annual Return &
Balance Sheet for the financial year ended 31.03.2014 thereby
prima facie violated the provisions of Section 92 & 137 r/w 403
of the Companies Act, 2013.
16. In response to the aforesaid observations, the petitioner
companies have filed their affidavit dated 6th June, 2016 through Mr. Karl
Maneck Pavri, authorized signatory of the petitioner companies, stating
that the requisite form PAS-3 with regard to increase in the authorized
share capital of the transferee company has been filed by the petitioner
company on 23rd January, 2016 and the challan evidencing proof of
submission of said form is placed on record. With regard to the second
observation, it has been submitted that the amount of Rs.28,00,00,000/-,
as mentioned in para 4.2 of the Scheme, represents the sum total of the
paid-up capital and the amount credited to the share premium account by
the transferee company following an infusion of Rs.27,00,00,000/- by its
parent company, LinkedIn Ireland, and which was inadvertently noted as
part of the paid up capital of the transferee company. With regard to the
third observation, it has been submitted that the form 20B (Annual
Return) and form 23AC (Balance Sheet) for the financial year ending 31st
March, 2014 were filed by the petitioner company on 18th February, 2016
and 27th February, 2016 respectively. The relevant forms and the
challans evidencing proof of submissions of forms are also placed on
record. In view of the aforesaid, the observations made by the Regional
Director do not survive.
17. No objection has been received to the Scheme of Amalgamation
from any other party. The petitioner companies, in the affidavit dated 19th
May, 2016 of Mr. Amit Kumar Mishra, counsel of the petitioner
companies, have submitted that they have not received any objection
pursuant to the citations published in the newspapers on 10th August,
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 19.07.2016, 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.
August 29, 2016
