Delhi High Court
Marvel Institute Of Technology ... vs ... on 29 August, 2016
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 109/2016
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(2) & 394 of the
Companies Act, 1956
Scheme of Amalgamation of:
Marvel Institute of Technology Private Limited
Non-Petitioner/Transferor Company No. 1
Shiva Infosystem Private Limited
Non-Petitioner/Transferor Company No. 2
New Ways Buildwell Private Limited
Petitioner/Transferor Company No. 3
WITH
Yuga Estate Private Limited
Non-Petitioner/Transferee Company
Through Mr. Naresh Kumar and Mr. R.
Khanna, Advocates for the petitioner
Ms. Aparna Mudiam, Asstt. Registrar
of Companies for the Regional Director
Mr. Sanjay Katyal, Advocate for the
Official Liquidator
SUDERSHAN KUMAR MISRA, J.
1. This petition has been filed under Sections 391(2) & 394 of the
Companies Act, 1956 by the petitioner/transferor company no. 3 seeking
sanction of the Scheme of Amalgamation of Marvel Institute of
Technology Private Limited (hereinafter referred to as the transferor
company no. 1); Shiva Infosystem Private Limited (hereinafter referred to
as the transferor company no. 2); and New Ways Buildwell Private
Limited (hereinafter referred to as the petitioner/transferor company no.3)
with Yuga Estate Private Limited (hereinafter referred to as the transferee
company).
2. The registered office of the petitioner/transferor company no. 3 is
situated at New Delhi, within the jurisdiction of this Court. However, the
registered offices of the transferor companies no. 1 & 2 and the
transferee company are situated at Haryana, outside the jurisdiction of
this Court. Learned counsel for the petitioner has submitted that a similar
petition has been filed by the transferor companies no. 1 & 2 and the
transferee company before the court of competent jurisdiction for
sanction of the Scheme of Amalgamation.
3. The petitioner/transferor company no. 3 was incorporated under
the Companies Act, 1956 on 16th March, 2005 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
4. The authorized share capital of the petitioner/transferor company
no. 3 is Rs.10,00,000/- divided into 1,00,000 equity shares of Rs.10/-
each. The issued, subscribed and paid-up share capital of the company
is Rs.9,50,000/- divided into 95,000 equity shares of Rs.10/- each.
5. A copy of the Memorandum and Articles of Association of the
petitioner/transferor company no. 3 has been filed on record. The audited
balance sheet, as on 31st March, 2015, of petitioner/transferor company
no. 3, along with the report of the auditors, has 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 claimed by
the applicants that the proposed amalgamation would enable pooling of
physical, financial and human 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 human
and other resource 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, upon coming into effect of this Scheme, the transferee
company shall issue and allot equity shares to the shareholders of the
transferor companies in the following ratio:
"01 equity share of Rs.10/- each of the transferee company,
credited as fully paid up, for every 33 equity shares of
Rs.10/- each held in the transferor company no. 1."
"01 equity share of Rs.10/- each of the transferee company,
credited as fully paid up, for every 08 equity shares of
Rs.10/- each held in the transferor company no. 2."
"07 equity shares of Rs.10/- each of the transferee company,
credited as fully paid up, for every 04 equity shares of
Rs.10/- each held in the transferor company no. 3."
8. It has been submitted by the petitioner that no proceedings under
Sections 235 and 251 of the Companies Act, 1956 are pending against
the petitioner/transferor company no. 3.
9. The Board of Directors of the petitioner/transferor company no. 3 in
their meeting held on 7th November, 2015 have unanimously approved
the proposed Scheme of Amalgamation. A copy of the Resolution passed
at the meeting of the Board of Directors of petitioner/transferor company
no. 3 has been placed on record.
10. The petitioner/transferor company no. 3 had earlier filed CA (M)
No. 13/2016 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 22nd January,
2016, 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 petitioner/transferor
company no. 3, there being no secured creditor of the petitioner
company, to consider and, if thought fit, approve, with or without
modification, the proposed Scheme of Amalgamation.
11. The petitioner/transferor company no. 3 has thereafter filed the
present petition seeking sanction of the Scheme of Amalgamation. Vide
order dated 12th February, 2016, 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 'Jansatta' (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 31st March, 2016. Copies of the newspaper clippings
containing the publications have been filed along with the said affidavit.
12. Pursuant to the notices issued, the Official Liquidator sought
information from the petitioner company. Based on the information
received, the Official Liquidator has filed a report dated 28th July, 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.
13. In response to the notices issued in the petition, Mr. Narender
Kumar Bhola, Regional Director, Northern Region, Ministry of Corporate
Affairs has filed his report dated 28th July, 2016 stating that the Regional
Director has no objection to the proposed Scheme of Amalgamation.
14. No objection has been received to the Scheme of Amalgamation
from any other party. The petitioner company in the affidavit dated 30th
July, 2016 of Ms. Komal Jain, Director of the petitioner company, has
submitted that neither the petitioner company nor their counsel have
received any objection pursuant to the citations published in the
newspapers on 31st March, 2016.
15. Considering the approval accorded by the equity shareholders and
creditors of the petitioner company 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,
subject to sanction of the Scheme in respect of the transferor companies
no. 1 and 2 and the transferee company from the court of competent
jurisdiction, sanction is hereby granted to the Scheme of Amalgamation
under Sections 391 and 394 of the Companies Act, 1956. The petitioner
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. Upon the sanction becoming effective from the
appointed date of Amalgamation, i.e. 1st April, 2015, the
petitioner/transferor company no. 3 shall stand dissolved without
undergoing the process of winding up.
16. Learned counsel for the Official Liquidator prays that costs of at
least Rs.1,00,000/- 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 03.08.2016, the petitioner 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.
17. The petition is allowed in the above terms.
Dasti
SUDERSHAN KUMAR MISRA, J.
August 29, 2016
