Kullu Valley Leisure Resorts ... vs B R Bee Products Private Limited
2016 Latest Caselaw 7458 Del

          IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Judgment reserved on: 15.11.2016
                                      Judgment pronounced on:19.12.2016

CO.PET. 459/2016

IN THE MATTER OF:-

KULLU VALLEY LEISURE RESORTS PRIVATE LIMITED
                        .....Petitioner no.1/Transferor Company


                                   AND

B R BEE PRODUCTS PRIVATE LIMITED
                          .....Petitioner no.2/Transferee Company

                               Through:     Mr.Sudhir     K.      Makkar,
                                            Senior Advocate with
                                            Ms.                 Meenakshi
                                            Singh,Advocates     for   the
                                            petitioners

CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL


                             JUDGMENT

SIDDHARTH MRIDUL, J.

1. This joint petition has been filed jointly under Sections 391(2) and 394

of the Companies Act, 1956 (hereafter referred to as the 'Act') seeking

sanction to the proposed scheme of Amalgamation (hereafter referred to as

the 'proposed scheme') of Kullu Valley Leisure Resorts Private Limited

(hereinafter referred to as 'Petitioner no.1/Transferor Company') with B R

Bee Products Private Limited (hereinafter referred to as 'Petitioner

no.2/Transferee Company').

2. The registered offices of the Petitioners are situated at NCT of Delhi,

within the jurisdiction of this Court.

3. The Transferor Company was incorporated under the Act on

25.07.1990 with the Registrar of Companies, Himachal Pradesh at Jalandhar.

Thereafter, theTransferor Company shifted its registered office from the state

of Himachal Pradesh to NCT of Delhi and obtained a certificate, dated

25.01.2016, in this regard from the Registrar of Companies, NCT of Delhi &

Haryana at New Delhi.

4. The authorised share capital of the Transferor Company as on

31.03.2015 is Rs.25,00,000/- divided into 2,50,000 equity shares of Rs.10/-

each. The issued, subscribed and paid up share capital of the Transferor

Company as on 31.03.2015 is Rs.20,37,100/- divided into 2,03,710 equity

shares of Rs.10/- each.

5. The Transferee Company was incorporated under the Act, on

09.12.2004, with the Registrar of Companies, NCT of Delhi and Haryana at

New Delhi.

6. The authorised share capital of the Transferee Company as on

31.03.2015 is Rs.37,00,00,000/- divided into 37,00,000 equity shares of

Rs.100/- each. The issued, subscribed and paid-up share capital of the

Transferee Company as on 31.03.2015 is Rs.33,32,50,000/- divided into

33,32,500 equity shares of Rs.100/- each.

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

Petitioners, have been duly filed as Annexures to the Company Application

(M) no.41 of 2016, earlier filed by the Petitioners. The audited financial

statements, as on 31.03.2015, of the Petitioners alongwith the report of the

auditors have also been duly filed. The same are on record.

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

salient features thereof have been incorporated and detailed in the present

petition. The rationale for implementation of the proposed scheme, as

detailed out in paragraph 3 of the present petition, is as follows:-

"3. xxxx xxxx xxxx xxxx xxxx

a. The Transferor and Transferee Companies are wholly owned subsidiary and holding companies. The proposed Scheme of Amalgamation would result in business synergy, pooling of resources and consolidation of these companies.

b. The proposed amalgamation would enable pooling of physical, financial and human resource of these Companies for the most beneficial utilization of these factors in the combined entity.

c. The proposed Scheme of 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.

d. The proposed amalgamation would enhance the shareholders' value of the Transferor and the Transferee Companies.

e. The said Scheme of Amalgamation will have beneficial impact on all the Transferor and the Transferee Companies, their shareholders, employees and other stakeholders and all concerned."

9. So far as the share exchange ratio is concerned, clause 9 of the

proposed scheme provides that, the Transferor Company is a wholly owned

subsidiary of the Transferee Company and, therefore, no new share will be

issued by the Transferee Company pursuant to the proposed scheme getting

sanctioned.

10. It has been averred on behalf of the Petitioners that there are no

proceedings pending against them, as on the date of filing of the present

petition, under Sections 235 to 251 of the Act (including their corresponding

sections of the Companies Act, 2013).

11. The Board of Directors of the Petitioners, in their separate meetings

held on 03.02.2016, have unanimously approved the proposed scheme.

Copies of the Resolutions passed at the meetings of the Board of Directors of

the Petitioners have been placed on record.

12. To recapitulate, the Petitioners had in the earlier round filed Company

Application (M) no.41 of 2016, whereby a prayer was sought to dispense

with the requirement of convening the meeting of their shareholders and

creditors. This Court vide order dated 23.03.2016 allowed the application and

dispensed with the requirement of convening and holding the meetings of the

shareholders and creditors of the Petitioners.

13. The Petitioners have thereafter filed the present petition seeking

sanction to the proposed scheme. Vide order dated 24.05.2016 notice in the

present petition was directed to be issued to the Official Liquidator and the

Regional Director, Northern Region. Furthermore, citations were directed to

be published in two newspapers, namely, 'Statesman' (English) and

'Rashtriya Sahara' (Hindi). Affidavit of service and publication, dated

06.09.2016, has been filed by the Petitioners, showing compliance regarding

service on the Regional Director and the Official Liquidator, and also

regarding publication of citations in the aforesaid newspapers. Copies of the

newspaper clippings, regarding publication carried out on 20.07.2016 have

also been filed alongwith the said affidavit.

14. Pursuant to the notices issued in the present petition, the Official

Liquidator sought information from the Petitioners. Based on the information

received, the Official Liquidator has filed a report dated 02.09.2016, wherein,

it has been stated that the he has not received any complaint against the

proposed scheme from any interested person/party and that the affairs of the

Petitioners 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.

15. Further, in response to the notices issued in the petition,

Mr. Narender Kumar Bhola, Regional Director, Northern Region, Ministry of

Corporate Affairs, filed his affidavit dated 06.09.2016 wherein it has been

stated that he has no objection to the sanction of the proposed scheme.

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

scheme from any other party. The Petitioners, vide affidavit dated

04.11.2016, have submitted that neither the Petitioners nor their counsel have

received any objection to the proposed scheme pursuant to the citations

published in the newspapers on 20.07.2016.

17. Considering the approval accorded by the shareholders and creditors of

the Petitioners to the proposed scheme; affidavit filed by the Regional

Director, Northern Region and the report of the Official Liquidator, having

not raising 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 Companies

will comply with the statutory requirements in accordance with law. Upon

the sanction becoming effective from the appointed date of the proposed

scheme, i.e. 1st April, 2015, the Transferor Company shall stand dissolved

without undergoing the process of winding up.

18. A certified copy of the order, sanctioning the proposed scheme, be

filed with the ROC, within 30 days of its receipt.

19. 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 Petitioners.

20. 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.

21. It has been stated by learned counsel appearing on behalf of the

Petitioners that costs in the sum of Rs.25,000/- already stands deposited with

the Common Pool Fund maintained by the Official Liquidator, Delhi, in

compliance to the oral directions of this Court, on 27.09.2016, when the final

arguments in this matter were initially heard. A copy of the acknowledgment,

dated 19.10.2016, with respect to the said deposit of costs has been placed on

record.

22. In view of the foregoing, no order as to costs is being made herein as

costs in the sum of Rs.25,000/- already stands deposited by the Petitioners

with the Common Pool Fund maintained by the Official Liquidator, Delhi.

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

accordingly disposed of.

SIDDHARTH MRIDUL, J DECEMBER 19, 2016 ap/mk/dn