Kalindee Rail Nirman (Engineers) ... vs Texmaco Rail & Engineering ...
2016 Latest Caselaw 7452 Del

           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                   Judgment Reserved On: 17.11.2016
                                 Judgment Pronounced On:19.12.2016


CO.PET. 542/2015

IN THE MATTER OF:-

KALINDEE RAIL NIRMAN (ENGINEERS) LIMITED

                                   ...Petitioner/Amalgamating Company


                          AND



TEXMACO RAIL & ENGINEERING LIMITED

                                              ...Amalgamated Company


                     Through:   Mr. Abhinav Vasisth, Sr. Advocate with
                                Mr. Anirudh Das, Mr. Kamaljeet Singh
                                and Mr. Vikram Shah, Advocates for the
                                Petitioner
                                Mr. Arun Bhardwaj, Sr. Advocate with
                                Ms. Arushi, Mr. P.V. Dinesh, Mr. Sindhu
                                T.P., Ms. Arushi Singh and Mr. Dinesh
                                Kumar for Impleader/Objector
                                Mr. Rajiv Bahl, Advocate for the Official
                                Liquidator
                                Ms. Aparna Mudium, Assistant Registrar
                                of Companies for the Regional Director




CO.PET.542/2015                                                Page 1 of 10
 CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL


                                JUDGMENT

CO.APPL. 1392/2016

The present application has been filed by Mrs. Brij Lata Gemini, praying as follows:-

"In the above facts and circumstance and in the interest of justice, it is most respectfully prayed that this Hon'ble Court may be:

(a) Pleased to pass an order impleading the Applicant as Supplementary party Respondent/ Objector in the present Company Petition in the interest of justice;

(b) Pleased to pass an order/direction to the Petitioner to provide a copy of the present petition to the impleadment Applicant/Objector in the interest of justice and;

(c) Pleased to pass an order giving liberty to the impleadment Applicant/Objector to file detailed objections in the above mentioned Company Petition in the interest of justice.

(d) Pleased to pass such other order or orders that this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice and equity."

Mr. Arun Bhardwaj, learned Senior Counsel appearing on behalf of the

applicant/objector, on instructions from Ms. Arushi, learned counsel, seeks

leave to withdraw the present application with liberty to institute appropriate

proceedings, in accordance with law, if so advised.

Leave and liberty granted.

The application is dismissed as withdrawn and disposed of accordingly.

CO.APPL. 3229/2016

In view of the circumstance that Co.Appl. 1392/2016, for impleadment,

has been withdrawn, Mr. Arun Bhardwaj, learned Senior Counsel appearing on

behalf of the applicant/objector seeks leave to withdraw this application.

Leave granted.

The application is dismissed as withdrawn and disposed of accordingly.

CO.APPL.3010/2016

In view of the circumstance that the above applications have been

withdrawn, the present application has become infructuous.

The application is accordingly disposed of as having become infructuous.

CO.PET.542/2015

1. The present petition has been filed under Sections 391 to 394 of the

Companies Act, 1956 (hereinafter referred to as 'the Act') by Kalindee Rail

Nirman (Engineers) Limited (hereinafter referred to as the

'Petitioner/Amalgamating Company'), seeking sanction to the proposed scheme

of Amalgamation (hereinafter referred to as the 'proposed scheme') of the

Petitioner/Amalgamating Company with Texmaco Rail & Engineering Limited

(hereinafter referred to as the 'Amalgamated Company').

2. The registered office of the Petitioner/Amalgamating Company is situated

at NCT of Delhi, within the jurisdiction of this Court.

3. The Petitioner/Amalgamating Company was incorporated under the Act,

on 15.02.1984, with the Registrar of Companies, Rajasthan at Jaipur.

Subsequently, Petitioner/Amalgamating Company shifted its registered office

from the State of Rajasthan to NCT of Delhi and obtained a certificate, dated

22.02.2002, in this regard from the Registrar of Companies, NCT of Delhi &

Haryana.

4. The registered office of the Amalgamated Company is situated at

Kolkata, outside the jurisdiction of this Court. In this behalf, learned senior

counsel for the Petitioner/Amalgamating Company has submitted that a separate

petition, being C.P. no.531 of 2015, was filed by the Amalgamated Company in

the Calcutta High Court, being the competent Court, and the proposed scheme

has been sanctioned by the said High Court vide its order dated 26.02.2016.

5. The details of the authorized, issued, subscribed and paid up share capital

qua the Petitioner/Amalgamating Company and the Amalgamated Company,

have been set out in paragraph 2 of the proposed scheme.

6. The authorized share capital of the Petitioner/Amalgamating Company as

on 31.03.2016 is Rs.65,00,00,000/- divided into 6,50,00,000 equity shares of

Rs.10/- each. The issued, subscribed and paid-up share capital of the

Petitioner/Amalgamating Company as on 31.03.2016 is Rs.16,50,75,970/-

divided into 1,65,07,597 equity shares of Rs.10/- each.

7. Copies of the Memorandum and Articles of Association of the

Petitioner/Amalgamating Company and the Amalgamated Company have been

filed on record alongwith Company Application no.74 of 2015, earlier filed by

the Petitioner/Amalgamating Company. The audited balance sheets of the

Petitioner/Amalgamating Company, as on 31.03.2016, along with the

independent auditors report, have also been filed. The same are on record.

8. A copy of the proposed scheme has been duly placed on record and the

salient features of the same have been incorporated and detailed out in the

present petition. It has been stated on behalf of the Petitioner/Amalgamating

Company that, inter alia, the proposed scheme will result in optimal utilization

of resources; better administration; and cost reduction including reduction in

managerial, administrative and other common costs, due to the pooling of

management, administrative and technical skills of various resources of the

Petitioner/Amalgamating Company and the Amalgamated Company. It has

been further stated that the proposed amalgamation will result in consolidation

of business presently being carried out by the Petitioner/Amalgamating

Company and the Amalgamated Company, which shall create greater synergies

between the business operations.

9. It has been averred on behalf of the Petitioner/Amalgamating Company

that there are no proceedings pending against them, under Sections 235 to 250A

of the Act (including their corresponding Sections of the Companies Act, 2013),

as on the date of filing of the present petition.

10. It has been further submitted on behalf of the Petitioner/Amalgamating

Company that the proposed scheme has been approved by the respective Board

of Directors of the Petitioner/Amalgamating Company and the Amalgamated

Company by way of resolutions dated 21.05.2014 and 30.12.2014. Copies of the

said resolutions are on record.

11. So far as the share exchange ratio is concerned, the proposed scheme

provides that, upon coming into effect of the proposed scheme, the

Amalgamated Company shall issue and allot equity shares to the shareholders

of the Petitioner/Amalgamating Company in the following ratio:

"106 fully paid up equity shares of Re.1/- each of the Amalgamated Company for every 100 fully paid-up equity shares of Rs.10/- each held by the shareholders in the Amalgamating Company."

12. To recapitulate, the Petitioner/Amalgamating Company had in the earlier

round filed an application, being Company Application (M) no.74 of 2015,

whereby a prayer was sought to convene the meetings of the equity

shareholders, secured and unsecured creditors of the Petitioner/Amalgamating

Company, seeking their approval to the proposed scheme. This Court vide order

dated 25.05.2015, allowed the application and directed convening of meetings

of the equity shareholders, secured and unsecured creditors of the

Petitioner/Amalgamating Company, to consider and, if thought fit, approve,

with or without modification, the proposed scheme.

13. The Chairpersons of the meetings so convened, of the equity

shareholders, secured and unsecured creditors of the Petitioner/Amalgamating

Company, have filed their reports stating that the meetings were duly held on

11.07.2015, as directed, and that the proposed scheme has been approved by the

requisite majority of the equity shareholders, secured and unsecured creditors of

the Petitioner/Amalgamating Company, present and voting at the said meetings.

The said reports are on record.

14. The Petitioner/Amalgamating Company has thereafter filed the present

petition seeking sanction to the proposed scheme. Vide order dated 07.08.2015,

notice in the present petition was directed to be issued to the Official Liquidator

and the Regional Director, Northern Region. Citations were also directed to be

published in two newspapers, namely, 'Indian Express' (English) and 'Jansatta'

(Hindi). Affidavit of service and publication, dated 06.01.2016, has been filed

by the Petitioner/Amalgamating Company, showing compliance regarding

service on the Regional Director and publication of the citations in the aforesaid

newspapers. Copies of the newspaper clippings, regarding publication carried

out on 12.12.2015 have also been filed alongwith the said affidavit.

15. Pursuant to the issuance of notices in the present petition, the Official

Liquidator sought information from the Petitioner/Amalgamating Company.

Based on the information received, the Official Liquidator has filed a report,

dated 07.01.2016, wherein, it has been stated that he has not received any

complaint against the proposed scheme from any interested person/party and

that the affairs of the Petitioner/Amalgamating Company do not appear to have

been conducted in a manner prejudicial to the interest of its members or to

public interest, as per second proviso of Section 394(1) of the Act.

16. Further, in response to the notices issued in the present petition, Mr. A.K.

Chaturvedi, Regional Director, Northern Region, Ministry of Corporate Affairs,

has filed his affidavit, dated 08.01.2016, wherein it has been stated he does not

have any objection to sanction of the proposed scheme.

17. It has been noted that no objections have been received to the proposed

scheme from any other party. The Petitioner/Amalgamating Company, vide

affidavit dated 06.01.2016, has submitted that neither the

Petitioner/Amalgamating Company nor their counsel have received any

objection to the proposed scheme, pursuant to the citations published in the

newspapers on 12.12.2015.

18. Considering the approval accorded by the equity shareholders, secured

and unsecured creditors of the Petitioner/Amalgamating Company to the

proposed scheme; affidavit filed by the Regional Director, Northern Region and

the report filed by the Official Liquidator, having not raised any objection to the

proposed scheme, there appears to be no impediment to the grant of sanction to

the proposed scheme. Consequently, sanction is hereby granted to the proposed

scheme. The Petitioner/Amalgamating Company will comply with the statutory

requirements in accordance with law. Upon sanction becoming effective from

the appointed date of the proposed scheme, i.e. 1st April, 2014 the

Petitioner/Amalgamating Company shall stand dissolved without undergoing

the process of winding up.

19. A certified copy of this order, sanctioning the proposed scheme, be filed

with the ROC within thirty (30) days of its receipt.

20. 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 proposed 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 Petitioner/Amalgamating Company.

21. 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.

22. Learned counsel for the Official Liquidator prays that costs of at least

Rs.50,000/- should be paid by the Petitioner/Amalgamating Company keeping

in view the fact that the matter has involved examination of extensive records.

Learned counsel for the Petitioner/Amalgamating Company states that the same

is acceptable to him. The Petitioner/Amalgamating Company shall deposit a

sum of Rs.50,000/- by way of costs, in the Delhi High Court Bar Association

Lawyers Social Security and Welfare Fund.

23. Consequently, the petition is allowed in the aforesaid terms and is

accordingly disposed of.

SIDDHARTH MRIDUL, J.

DECEMBER 19, 2016 dn/ap