Padmesh Realtors Private Limited vs ...
2016 Latest Caselaw 1045 Del

                   IN THE HIGH COURT OF DELHI
                  COMPANY PETITION NO. 271/2015

                                      Reserved on 4th November, 2015
                           Date of pronouncement: 10th February, 2016
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):

And

Petition under Section 391(2) & 394 of the
Companies Act, 1956

Scheme of Amalgamation of:

Padmesh Realtors Private Limited
                                          Petitioner/Transferor Company
      WITH

Suncity Infrastructures Private Limited
                                          Petitioner/Transferee Company

                                Through      Mr.    Mukesh    Sukhija,
                                Advocate for the petitioners
                                Mr. Sanjay Bose, Dy. Registrar of
                                Companies for the Regional Director
                                Mr. Sanjay Katyal, Advocate for the
                                Official Liquidator

SUDERSHAN KUMAR MISRA, J.

1. This joint petition has been filed under Sections 391(2) & 394 of

the Companies Act, 1956 by the petitioner companies seeking sanction

of the Scheme of Amalgamation of Padmesh Realtors Private Limited

(hereinafter referred to as the transferor company) with Suncity

Infrastructures Private Limited (hereinafter referred to as the transferee

company).

2. The registered offices of the transferor and transferee companies

are situated at New Delhi, within the jurisdiction of this Court.

3. The transferor company was incorporated under the Companies

Act, 1956 on on 2nd September, 2006 with the Registrar of Companies,

NCT of Delhi & Haryana at New Delhi.

4. The transferee company was incorporated under the Companies

Act, 1956 on 17th February, 2005 with the Registrar of Companies, NCT

of Delhi & Haryana at New Delhi.

5. The present authorized share capital of the transferor company is

Rs.16,00,00,000/- divided into 1,60,00,000 equity shares of Rs.10/- each.

The issued, subscribed and paid-up share capital of the company is

Rs.1,11,200/- divided into 11,120 equity shares of Rs.10/- each.

6. The present authorized share capital of the transferee company is

Rs.40,00,000/- divided into 2,90,000 equity shares of Rs.10/- each

aggregating to Rs.29,00,000/- and 1,10,000 preference shares of Rs.10/-

each aggregating to Rs.11,10,000/-. The issued, subscribed and paid-up

share capital of the company is Rs.18,70,600/- divided into 80,000 equity

shares of Rs.10/- each aggregating to Rs.8,00,000/- and 1,07,060 12%

optionally convertible cumulative preference shares of Rs.10/- each

aggregating to Rs.10,70,600/-.

7. Copies of Memorandum and Articles of Association of the

transferor and transferee companies have been filed on record with the

joint application, being CA(M) 54/2015, earlier filed by the petitioners.

The audited balance sheets, as on 31st March, 2014, of the transferor and

transferee company, along with the report of the auditors, and the

unaudited balance sheets, as on 28th February, 2015, of the Petitioner

companies had also been filed.

8. 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 petitioners that the proposed Amalgamation would have the

benefit of simplification of group structure; reduce managerial overlaps,

which are necessarily involved in running multiple entities; reduce

administrative cost; remove multiple layer inefficiencies; and achieving

management efficiency.

9. 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 preference shares to the shareholders of

the transferor companies in the following ratio:-

1 (one) 12% optionally convertible cumulative preference share of Rs.10/- each to be issued and allotted by the Transferee Company in lieu of every 1656 equity shares of Rs.10/- each fully paid up held by the shareholders in the transferor company, as per the terms and conditions mentioned in Annexure - 'A' to the Scheme."

10. It has been submitted by the petitioners that no proceedings under

Sections 235 to 251 of the Companies Act, 1956 are pending against the

petitioner companies.

11. The Board of Directors of the transferor and transferee companies

in their separate meetings held on 2 nd April 2015 have unanimously

approved the proposed Scheme of Amalgamation. Copies of the

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

transferor and transferee companies have been placed on record.

12. The petitioner companies had earlier filed CA (M) No. 54/2015

seeking directions of this court to dispense with the requirement of

convening the meetings of their equity shareholders, preference

shareholders, secured and unsecured creditors, which are statutorily

required for sanction of the Scheme of Amalgamation. Vide order dated

5th May, 2015, this court allowed the application and dispensed with the

requirement of convening and holding the meetings of the equity

shareholders, preference shareholder and creditors of the transferor and

transferee companies, there being no secured creditor of the transferor

company and no secured or unsecured creditor of the transferee

company, to consider and, if thought fit, approve, with or without

modification, the proposed Scheme of Amalgamation.

13. The petitioner companies have thereafter filed the present petition

seeking sanction of the Scheme of Amalgamation. Vide order dated 25th

May, 2015, 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

(Hindi) Delhi editions. Affidavit of service has been filed by the petitioners

showing compliance regarding service on the Regional Director, Northern

Region and the Official Liquidator, and also regarding publication of

citations in the aforesaid newspapers on 24th August, 2015. Copies of the

newspaper clippings containing the publications have been filed along

with the affidavit of service.

14. Pursuant to the notices issued, the Official Liquidator sought

information from the petitioner companies. Based on the information

received, the Official Liquidator has filed a report dated 5th October, 2015

wherein he has stated that he has not recei ved 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.

15. In response to the notices issued in the petition, Mr. A. K.

Chaturvedi, Regional Director, Northern Region, Ministry of Corporate

Affairs has filed his report dated 5 th October, 2015. Relying on Clause

5.4(i) of Part-V of the Scheme, he has stated that, upon sanction of the

Scheme of Amalgamation, all the employees of the transferor company

shall become the employees of the transferee company witho ut any

break or interruption in their services. He has further submitted that in

Clause 4.2.1(vi) of Part-IV of the Scheme, it has been stated that the

transferee company shall account for amalgamation in its books in

accordance with the applicable accounting standards prescribed by the

Institute of Chartered Accountants of India. He further submitted that in

Clause 5.6 of Part-V of the Scheme, it has been stated that upon this

scheme becoming effective, the transferor company shall stand dissolved

without the process of winding up.

16. No objection has been received to the Scheme of Amalgamation

from any other party. The petitioner companies, in the affidavits dated 3rd

October, 2015 of Sh. Rohit Gupta, authorized signatory of the transferor

company and Sh. Dharmender Gupta, authorized signatory of the

transferee company, have submitted that neither the petitioner

companies nor their counsel have received any objection pursuant to the

citations published in the newspapers on 24 th August, 2015.

17. Considering the approval accorded by the shareholders and

creditors of the petitioner companies 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,

sanction is hereby granted to the Scheme of Amalgamation under

Sections 391 and 394 of the Companies Act, 1956. The petitioner

companies 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 transferor

company shall stand dissolved without undergoing the process of winding

up.

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

least Rs.1,00,000/- should be paid by the petitioners keeping in view the

fact that the matter has involved examination of extensive records and

also prioritized hearings. Learned counsel for the petitioner companies

states that the same is acceptable to him. As directed vide order dated

04.11.2015, the petitioners shall deposit a sum of Rs.1,00,000/- by way

of costs with the Common Pool Fund of the Official Liquidator.

19. The petition is allowed in the above terms.

Dasti.

SUDERSHAN KUMAR MISRA, J.

February 10, 2016