Delhi High Court
Modtech Projects (India) Private ... vs Modtech Material Handling ... 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. 619/2016
IN THE MATTER OF:-
MODTECH PROJECTS (INDIA) PRIVATE LIMITED
....PETITIONER/TRANSFEROR COMPANY
AND
MODTECH MATERIAL HANDLING PROJECTS 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 and 394
of the Companies Act, 1956 (hereinafter referred to as 'the Act') by Modtech
Projects (India) Private Limited (hereinafter referred as 'Transferor
Company') and Modtech Material Handling Projects Private Limited
(hereinafter referred as 'Transferee Company') seeking sanction of the
Scheme of Amalgamation (hereinafter referred to as 'the Scheme') between
the Transferor Company and the Transferee Company.
2. The Transferor Company and the Transferee Company are hereinafter,
jointly referred to as 'Petitioners'.
3. The registered offices of the Petitioners are situated at New Delhi,
within the jurisdiction of this Court.
4. The Transferor Company was originally incorporated under the Act on
14.08.2000, with the Registrar of Companies, NCT of Delhi & Haryana at
New Delhi.
5. The Transferee Company was incorporated under the Act on
17.01.2006 with the Registrar of Companies, NCT of Delhi & Haryana at
New Delhi.
6. The authorized share capital of the Transferor Company as on
31.03.2015 is Rs.10,00,000/-, divided into 1,00,000 Equity Shares of Rs.10/-.
The issued, subscribed and paid up share capital of the Transferor Company
as on 31.03.2015 is Rs.8,81,000/-, divided into 88,100 Equity Shares of
Rs.10/- each.
7. The authorized share capital of the Transferee Company, as on
31.03.2015 is Rs.40,00,000/-, divided into 4,00,000 Equity Shares of Rs.10/-
each. The issued, subscribed and paid up share capital of the Transferee
Company as on 31.03.2015 is Rs.35,30,000/- divided into 3,53,000 Equity
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 has been filed on record and the salient features
of the Scheme have been incorporated and set out in detail in the petition and
the accompanying affidavits. It has been by the petitioners that the proposed
amalgamation will inter alia, give the consolidated company better finances
and facilitate adequate resource mobilization to sustain growth. It has further
been stated that the proposed Scheme will result in reduction of overheads,
administrative, managerial and other expenditure, and bring about operational
rationalization and efficiency, organizational efficiency and optimal
utilization of various resources.
10. So far as the share exchange ratio for amalgamation is concerned, the
Scheme provides that, upon the Scheme finally coming into effect, the
Transferee Company shall issue shares in the following manner:
"96 Equity Share of Rs.10/- each, credited as fully paid-up,
of the Transferee Company for every 100 Equity Share of
Rs.10/- each held in the Transferor Company."
11. It has been submitted that no proceedings under Sections 235 to 251 of
the Act (and under the corresponding provisions of the Companies Act, 2013)
are pending against either of the Petitioners.
12. The Board of Directors of the transferor and transferee companies in
their separate meetings held on 20.11.2015 have unanimously approved the
proposed Scheme. Copies of the Resolutions passed at the meetings of the
Board of Directors of the Transferor and Transferee Companies have been
placed on record.
13. The Petitioners had earlier filed an application, being Company
Application (Main) No.71 of 2016 seeking directions of this Court to
dispense with the requirement of convening the meetings of Equity
Shareholders, Secured and Unsecured Creditors of the Petitioners to consider
and if thought fit, approve, with or without modifications, the Scheme. Vide
order dated 19.07.2016, this Court allowed the Application and dispensed
with the requirement of convening and holding the meetings of Equity
Shareholders of the Transferor Company; Equity Shareholders, Secured and
Unsecured Creditors of the Transferee Company, to consider and, if thought
fit, approve, with or without modification, the proposed scheme of
amalgamation. The Transferor Company has no secured or unsecured
creditors.
14. The Petitioners have thereafter filed the present Petition seeking
sanction of the Scheme of Amalgamation. By way of order dated 27.07.2016,
notice in the present 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 and Hindi).
An affidavit dated 19.08.2016 has been filed by the petitioners showing
compliance regarding publication of citations in the aforesaid newspapers on
12.08.2016.
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 of Amalgamation.
18. No objection has been received to the Scheme from any other party. By
way of affidavit dated 08.11.2016 of Mr. Sutikshan Lai, Authorised
Signatory of the Transferee 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 to the Scheme pursuant to the
citations published in the newspapers on 12.08.2016.
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. 2,00,000/-, 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 present petition is allowed in the aforesaid terms and disposed of
accordingly.
SIDDHARTH MRIDUL, J.
DECEMBER 19, 2016
dn/sb
