Delhi High Court
Dalim Commercial Private Limited vs ... on 29 August, 2016
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 424/2015
Reserved on 18th 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:
Dalim Commercial Private Limited
Petitioner/Transferor Company
WITH
H S Projects Private Limited
Petitioner/Transferee Company
Through Mr. Hemant Sharma and
Mr.Palash Aggarwal, 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 to 394 of the
Companies Act, 1956 by the petitioner companies seeking sanction of
the Scheme of Amalgamation of Dalim Commercial Private Limited
(hereinafter referred to as the transferor company) with H S Projects
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 originally incorporated under the
Companies Act, 1956 on 7th October, 2004 with the Registrar of
Companies, West Bengal. Thereafter, the company shifted its registered
office from the State of West Bengal to Delhi and obtained a certificate in
this regard from the Registrar of Companies, NCT of Delhi & Haryana at
New Delhi on 4th April, 2012.
4. The transferee company was incorporated under the Companies
Act, 1956 on 14th September, 2006 with the Registrar of Companies,
NCT of Delhi & Haryana at New Delhi.
5. The present authorized share capital of the transferor company is
Rs.36,00,000/- divided into 3,60,000 equity shares of Rs.10/- each. The
issued, subscribed and paid up capital of the company is Rs.35,15,000/-
divided into 3,51,500 equity shares of Rs.10/- each.
6. The present authorized share capital of the transferee company is
Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each. The
issued, subscribed and paid up capital of the company is Rs.1,00,000/-
divided into 10,000 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) 50/2015, 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 submitted by
the petitioners that the proposed scheme will improve the financial
position of the companies through restructuring and will strengthen the
business and financial operations of the company.
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 for
every 10 fully paid up equity shares of Rs.10/- each held by
the shareholders 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 27th January, 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. 50/2015
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 5th 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 10th
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 'Business Standard' (English) and
(Hindi) Delhi 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 January, 2016. 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 9th 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 1st December, 2015. Relying on Clause
3.1.2(g) of the Scheme, he has stated that all the employees of the
transferor company, as on effective date, shall become the employees of
the transferee company without any break or interruption in their service.
He has further submitted that in Clause 5.2(c) of the Scheme, it has been
stated that the transferee company shall follow the method of accounting
as prescribed for the pooling of interest method under the Accounting
Standard-14 as notified under the Companies (Accounting Standards)
Rules, 2006. He further submitted that in Clause 5.20 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. The
Regional Director has also filed another report dated 15th July, 2016
praying that the petitioner companies may be directed to comply with
Accounting Standard-14 notified by the Central Government under
Section 133 of the Companies Act, 2013 and as provided under clause
5.2(c) of the Scheme of Amalgamation.
16. In response to the aforesaid observation, the petitioner companies
in the affidavit dated 16th July, 2016 of Mr. Hemant Bahri, Director of the
petitioner companies, have undertaken to comply with Accounting
Standard-14 notified by the Central Government under Section 133 of the
Companies Act, 2013 and as provided under clause 5.2(c) of the Scheme
of Amalgamation. In view of the aforesaid, the observation made by the
Regional Director stands satisfied.
17. No objection has been received to the Scheme of Amalgamation
from any other party. The petitioner companies, in the affidavit dated 16th
July, 2016 of Mr. Hemant Bahri, authorized signatory of the petitioner
companies, have submitted that neither the petitioner companies nor
their counsel have received any objection pursuant to the citations
published in the newspapers on 12th January, 2016.
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.50,000/- 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 18.07.2016, the petitioners shall deposit a sum of Rs.50,000/- 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
