Delhi High Court
Ambassador Infrastructure ... vs ... on 29 August, 2016
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 425/2015
Reserved on 3rd 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 to 394 of the
Companies Act, 1956
Scheme of Amalgamation of:
Ambassador Infrastructure Private Limited
Petitioner/Transferor Company No. 1
Crossings Developers Private Limited
Petitioner/Transferor Company No. 2
Crossings Constructions Private Limited
Petitioner/Transferor Company No. 3
Crossings Promoters Private Limited
Petitioner/Transferor Company No. 4
Crossings Real Estate Private Limited
Petitioner/Transferor Company No. 5
Innovation Promoters Private Limited
Petitioner/Transferor Company No. 6
New Capital Infrastructure Private Limited
Petitioner/Transferor Company No. 7
Amazon Infrastructure Private Limited
Petitioner/Transferor Company No. 8
WITH
Crossings Infrastructure Private Limited
Non-Petitioner/Transferee Company
Through Mr. Rajeev Kumar and
Mr.Ajeet Singh, Advocates for the
petitioners
Ms. Aparna Mudiam, Asstt. Registrar
of Companies for the Regional Director
CP 425/2015 Page 1 of 12
Mr. Sanjay Katyal, 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/transferor companies seeking
sanction of the Scheme of Amalgamation of Ambassador Infrastructure
Private Limited (hereinafter referred to as the petitioner/transferor
company no. 1); Crossings Developers Private Limited (hereinafter
referred to as the petitioner/transferor company no. 2); Crossings
Constructions Private Limited (hereinafter referred to as the
petitioner/transferor company no. 3); Crossings Promoters Private
Limited (hereinafter referred to as the petitioner/transferor company
no.4); Crossings Real Estate Private Limited (hereinafter referred to as
the petitioner/transferor company no. 5); Innovation Promoters Private
Limited (hereinafter referred to as the petitioner/transferor company
no.6); New Capital Infrastructure Private Limited (hereinafter referred to
as the petitioner/transferor company no. 7); and Amazon Infrastructure
Private Limited (hereinafter referred to as the petitioner/transferor
company no. 8) with Crossings Infrastructure Private Limited (hereinafter
referred to as the transferee company).
2. The registered offices of the petitioner/transferor companies and
the transferee company are situated at New Delhi, within the jurisdiction
of this Court.
3. The petitioner/transferor company no. 1 was incorporated under
the Companies Act, 1956 on 10th January, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
4. The petitioner/transferor company no. 2 was incorporated under
the Companies Act, 1956 on 1st May, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
5. The petitioner/transferor company no. 3 was incorporated under
the Companies Act, 1956 on 3rd May, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
6. The petitioner/transferor company no. 4 was incorporated under
the Companies Act, 1956 on 23rd May, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
7. The petitioner/transferor company no. 5 was incorporated under
the Companies Act, 1956 on 20th May, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
8. The petitioner/transferor company no. 6 was incorporated under
the Companies Act, 1956 on 2nd June, 2005 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
9. The petitioner/transferor company no. 7 was incorporated under
the Companies Act, 1956 on 10th January, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
10. The petitioner/transferor company no. 8 was incorporated under
the Companies Act, 1956 on 10th January, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
11. The present authorized share capital of the petitioner/transferor
companies no. 1 to 8 are Rs.1,00,000/- each divided into 10,000 equity
shares of Rs.10/- each. The issued, subscribed and paid-up share capital
of the companies are Rs.1,00,000/- each divided into 10,000 equity
shares of Rs.10/- each.
12. Copies of the Memorandum and Articles of Association of the
petitioner/transferor companies and the transferee company have been
filed on record. The audited balance sheets, as on 31st March, 2014, of
petitioner/transferor companies and the transferee company, along with
the report of the auditors, have also been filed.
13. 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 transferor companies are wholly owned
subsidiaries of the transferee company. It is claimed that the proposed
amalgamation would enable pooling of physical and financial resources
of these companies for their most beneficial utilization in the combined
entity. It is further 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 resources and enhancement of overall business
efficiency. It will enable these companies to combine their operational
strength, to build a wider capital and financial base and to promote and
secure overall growth of their businesses.
14. So far as the share exchange ratio is concerned, the Scheme
provides that since the transferor companies are wholly owned
subsidiaries of the transferee company, no share would be issued by the
transferee company to the transferor companies upon the Scheme
becoming finally effective, and the shares so held by the transferee
company in the transferor companies shall stand cancelled.
15. 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/transferor companies.
16. The Board of Directors of the petitioner/transferor companies and
the transferee company in their separate meetings held on 27th February,
2015 and 28th February, 2015 respectively have unanimously approved
the proposed Scheme of Amalgamation. Copies of the Resolutions
passed at the meetings of the Board of Directors of the
petitioner/transferor companies and the transferee company have been
placed on record.
17. The petitioner/transferor companies had earlier filed CA (M) No.
64/2015 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 and to dispense with the requirement of the
transferee company to approach this Court for seeking sanction of the
Scheme of Amalgamation. Vide order dated 14th May, 2015, this court
allowed the application and dispensed with the requirement of convening
and holding the meetings of the equity shareholders of the transferor
companies, there being no secured or unsecured creditor of the petitioner
companies, to consider and, if thought fit, approve, with or without
modification, the proposed Scheme of Amalgamation. Vide said order,
this Court also dispensed with the requirement of the transferee company
having to approach this Court under Section 391 of the Companies Act,
1956 seeking sanction of the Scheme of Amalgamation.
18. The petitioner/transferor companies have thereafter filed the
present petition seeking sanction of the Scheme of Amalgamation. Vide
order dated 10th July, 2016, 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 'Indian Express'
(English) and 'Jansatta' (Hindi) Delhi editions. An affidavit has been filed
by the petitioners showing compliance regarding publication of citations
in the aforesaid newspapers on 27th August, 2015. Copies of the
newspaper clippings containing the publications have been filed along
with the affidavit of service.
19. 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 2nd December,
2015 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 companies do not appear to have been conducted in a manner
prejudicial to the interest of their members, creditors or public interest, as
per second proviso of Section 394(1) of the Companies Act, 1956.
20. 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 3rd December, 2015. Relying on Clause
12.2 of the Scheme, he has stated that all the employees of the
transferor companies, 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 13.7 of the Scheme, it
has been stated that the transferee company shall abide by the
Accounting Standard-14 issued by the Institute of Chartered Accountants
of India. He further submitted that in Clause 11.1 of the Scheme, it has
been stated that upon this scheme becoming effective, the transferor
companies shall stand dissolved without the process of winding up. The
Regional Director in para 8.1 of his report has made the following
observations:
(1) The Board of Directors of the transferor companies and the
transferee company have approved the proposed Scheme in their Board
meetings held on 27.02.2015. Accordingly, in terms of provisions of
Section 117(3) read with 179(3) of the Companies Act, 2013, the
companies are required to file such resolution (e-form MGT-14) with the
ROC within 30 days of passing such resolutions whereas none of the
companies have filed the said resolution as yet thereby prima facie
violating the provisions of Section 117(3) of the Companies Act, 2013;
(2) In para 17.4 of the Scheme it is provided that if the Scheme fails to
take effect by 30.09.2015 or such later date as may be agreed by the
respective Board of Directors of the petitioner companies, the Scheme
shall become null and void. The Regional Director has submitted that the
petitioner companies have not enclosed the Board Resolutions, if any,
extending the period of the proposed Scheme of Amalgamation with the
petition, and hence, it may be treated as null and void to this extent.
Further, the Regional Director in para 8.3 of his report has
submitted that the transferee company has violated the provisions of
Section 383A of the Companies Act.
21. In response to the aforesaid observations, the petitioner
companies in the affidavit dated 4th December, 2015 of Mr. Manoj Gaur,
Director of the petitioner companies, have submitted that although the
petitioner companies have not filed the requisite e-Form MGT-14 within
the statutory period of 30 days but the same have been duly filed along
with penalty. Copies of the said forms have also been placed on record
along with the affidavit. With regard to the second observation of the
Regional Director, the petitioner companies have submitted that the
Board of Directors of the petitioner companies in their respective Board
meetings held on 21st September, 2015 have extended the period of the
Scheme till 31st March, 2016. Thereafter, the Board of Directors of the
petitioner companies in their respective Board meetings held on 19th
March, 2016 have extended the period of the Scheme till 31st July, 2016,
which was further extended to 31st March, 2017 vide Board Resolutions
dated 6th May, 2016. The petitioner companies have moved an
application viz. CA No. 2763/2016 for bringing on record the aforesaid
Board Resolutions relating to extension of the validity of the Scheme. The
said application was allowed by this Court by a separate order dated 3 rd
August, 2016, and the documents were taken on record. So far as the
violation of Section 383A of the Act is concerned, the petitioner
companies have submitted that the transferee company had a whole time
company secretary who resigned on 1st October, 2015 and the transferee
company is in the process of appointing a Company Secretary and is
desirous of filling the same within the statutory period. Since, the
transferee company is not the subject matter of dissolution and will
remain in existence even after the sanction of the Scheme, therefore, 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.
In view of the aforesaid, the observations made by the Regional Director
stand satisfied.
22. No objection has been received to the Scheme of Amalgamation
from any other party. The petitioner companies, in the affidavit dated 4th
December, 2015 of Mr. Manoj Gaur, Director 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 27th August, 2015.
23. 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 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,
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
companies no. 1 to 8 shall stand dissolved without undergoing the
process of winding up.
24. Learned counsel for the Official Liquidator prays that costs of at
least Rs.2,00,000/- 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 companies
states that the same is acceptable to him. As already directed vide order
dated 03.08.2016, the petitioners shall deposit a sum of Rs.2,00,000/- by
way of costs with Delhi High Court Bar Association Lawyers Social
Security and Welfare Fund, New Delhi.
25. The petition is allowed in the above terms.
Dasti.
SUDERSHAN KUMAR MISRA, J.
August 29, 2016
