Delhi High Court
Air Factory Energy Limited vs Anest Iwata Motherson Private ... on 19 December, 2016
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved On: 22.11.2016
Judgment Pronounced On:19.12.2016
CO.PET. 634/2016
IN THE MATTER OF:-
AIR FACTORY ENERGY LIMITED
....PETITIONER/TRANSFEROR COMPANY
AND
ANEST IWATA MOTHERSON PRIVATE LIMITED
....PETITIONER /TRANSFEREE COMPANY
Through: Mr Manoj Kumar Garg and Mr Prem
Mardi, Advocates for petitioner.
Ms Aparna Mudiam, Asst. ROC for RD.
Ms Ruchi Sindhwani, Advocate for OL.
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
JUDGMENT
SIDDHARTH MRIDUL, J
1. The present petition has been filed jointly, under sections 391 to 394 of
the Companies Act, 1956 (hereinafter referred to as 'the Act') by Air Factory
Energy Limited (hereinafter referred as 'Transferor Company') and Anest Iwata
Motherson Private Limited (hereinafter referred as 'Transferee Company')
seeking sanction of the Scheme of Amalgamation (hereinafter referred to as 'the
Scheme') of the Transferor Company with the Transferee Company.
2. The Transferor Company and the Transferee Company are hereinafter
collectively, referred to as 'Petitioners'.
3. The registered offices of the Transferor Company and the Transferee
Company are situated at New Delhi, within the jurisdiction of this Court.
4. The Transferor Company was originally incorporated under the Act on
12.11.2007, with the Registrar of Companies, NCT of Delhi & Haryana at New
Delhi.
5. The Transferee Company was incorporated under the Act on 05.12.2000
with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi under
the name and style of 'Anest Iwata Motherson Private Limited'. Subsequently,
the Transferee Company changed its name from 'Anest Iwata Motherson
Private Limited' to 'Anest Iwata Motherson Limited' and a fresh certificate of
incorporation dated 01.06.2001 was issued in this behalf. Thereafter, the
Transferee Company changed its name from 'Anest Iwata Motherson Limited'
to 'Anest Iwata Motherson Private Limited' and a fresh certificate of
incorporation dated 31.03.2015 was issued.
6. The authorized share capital of the Transferor Company as on 31.03.2015
is Rs.1,00,00,000/- divided into 10,00,000 Equity Shares of Rs.10/-. The issued,
subscribed and paid up share capital of the Transferor Company as on
31.03.2015 is Rs.80,00,000/-, divided into 8,00,000 Equity Shares of Rs.10/-
each.
7. The authorized share capital of the Transferee Company as on 31.03.2015
is Rs.45,00,00,000/-, divided into 4,20,00,000 Equity Shares of Rs.10/- each
and 30,00,000 Preference Shares of Rs.10/- each. The issued, subscribed and
paid up share capital of the Transferee Company as on 31.03.2015 is
Rs.43,50,00,000/-, divided into 4,05,00,000 Equity Shares of Rs.10/- each and
30,00,000 Preference Shares of Rs.10/- each.
8. Copies of Memorandum of Association and Articles of Association of the
Transferor Company and the Transferee Company have been filed on record.
The Audited Balance Sheets, as on 31.03.2015, of the Transferor Company and
the Transferee Company along with the Auditors' Reports, have also been filed
and the same are on record.
9. A copy of the Scheme of Amalgamation has been filed on record and the
salient features of the Scheme have been incorporated and set out in detail in the
application and the accompanying affidavits. It has been stated by the
petitioners that the Transferor Company is a wholly owned subsidiary of the
Transferee and the proposed amalgamation shall result in pooling of resources,
creating better synergies across the group, optimal utilisation of resources and
greater economies of scale. It has been further been stated that inter alia, the
proposed scheme will result in faster and effective decision making, better
administration and cost reduction.
10. So far as Share Exchange Ratio is concerned, the scheme provides that
upon coming into effect of this scheme, no consideration shall be payable by the
Transferee Company since the Transferor Company is the wholly owned
subsidiary of the Transferee Company.
11. It has been submitted that no proceedings under Sections 235 to 251 of
the Act (or under the corresponding provisions of the Companies Act, 2013)
are pending against either of the Petitioners.
12. The Board of Directors of the Petitioners in their separate meetings held
on 07.12.2015 have unanimously approved the proposed Scheme of
Amalgamation. Copies of the Resolutions passed at the meetings of the Board
of Directors of the Petitioners have been placed on record.
13. The Petitioners had earlier filed a an application being Company
Application (Main) No. 67 of 2016, seeking directions of this Court to dispense
the requirement of convening the meetings of Equity Shareholders, Secured and
Unsecured Creditors of the Transferor Company and; Equity Shareholders,
Preference Shareholders, Secured and Unsecured Creditors of the Transferee
Company, to consider, and if thought fit, approve, with or without
modifications, the Scheme. By way of order dated 19.07.2016 this Court
allowed the Application and dispensed with the requirement of convening and
holding the meetings of Equity Shareholders, Preference Shareholders, Secured
and Unsecured Creditors of the Transferor and Transferee Companies, to
consider and, if thought fit, approve, with or without modification, the proposed
scheme of amalgamation.
14. The Petitioners have thereafter filed the present Petition seeking sanction
of the Scheme. Vide order dated 01.08.2016, notice in the Petition was issued to
the Regional Director, Northern Region and the Official Liquidator. Citations
were directed to be published in the Delhi Editions of newspapers, 'Business
Standard' (English & Hindi). An affidavit dated 31.08.2016 has been filed by
the petitioners showing compliance regarding publication of citations in the
aforesaid newspapers on 17.08.2016.
15. Pursuant to the notices issued in the Petition, the Official Liquidator has
filed a report dated 10.11.2016 wherein it has been stated that he has not
received any complaint against the proposed Scheme 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 to public interest as per second proviso of
Section 394(1) of the Companies Act, 1956.
16. Therefore, no objection has been raised on behalf of the Official
Liquidator to the grant of sanction to the Scheme.
17. In response to the notices issued in the Petition, the Regional Director,
Northern Region, Ministry of Corporate Affairs, New Delhi has filed an
affidavit dated 11.11.2016 stating that the Regional Director has no objection to
the proposed Scheme.
18. No objection has been received to the Scheme of Amalgamation from any
other party. By way of affidavit dated 08.11.2016 of Mr. P. Srinivasan,
authorized signatory of the Transferor Company and affidavit dated 09.11.2016
of the counsel for the petitioners, it has been averred that neither the petitioners
nor their counsel have received any objection pursuant to the citations published
in the newspapers on 17.08.2016.
19. In view of the approval accorded by the shareholders and creditors of the
petitioners to the proposed Scheme and the report and affidavit filed by the
Official Liquidator and the Regional Director, Northern Region, respectively,
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. Hence, sanction is hereby granted to the Scheme of
Amalgamation under sections 391 and 394 of the Companies Act, 1956. The
petitioners will comply with the statutory requirements in accordance with law.
20. A certified copy of this order, sanctioning the Scheme, be filed with the
ROC, within thirty (30) days of its receipt.
21. Resultantly, it is hereby directed that the Petitioners will comply with all
provisions of the Scheme and, in particular, those which are referred to
hereinabove.
22. Notwithstanding the above, if there is any deficiency found or, violation
committed qua any enactment, statutory rule or regulation, the sanction granted
by this Court to the Scheme will not come in the way of action being taken,
albeit, in accordance with law, against the concerned persons, directors and
officials of the Petitioners.
23. The Transferor Company shall stand dissolved without being wound up.
24. It is made clear, that this order shall not be construed as an order granting
exemption, inter alia, from, payment of stamp duty or, taxes or, any other
charges, if, payable, as per the relevant provisions of law or, from any
applicable permissions that may have to be obtained or, even compliances that
may have to be made, as per the mandate of law.
25. The Petitioners shall deposit a sum of Rs.1,00,000/-, by way of costs, in
the Delhi High Court Bar Association Lawyers' Social and Welfare Fund, New
Delhi, within a period of two weeks from today.
26. The Petition is allowed in the aforesaid terms and is disposed of
accordingly.
SIDDHARTH MRIDUL, J.
DECEMBER 19, 2016
dn/sb
