Comet Healthcare And Consulting ... vs ...
2016 Latest Caselaw 1049 Del

                   IN THE HIGH COURT OF DELHI
                  COMPANY PETITION NO. 397/2015

                                      Reserved on 17th December, 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 Sections 391 and 394 of the
Companies Act, 1956

Scheme of Amalgamation of:

Comet Healthcare and Consulting Private Limited
                                  Petitioner/Transferor Company No. 1

RG Medicity Private Limited
                                     Petitioner/Transferor Company No. 2

R.B. Medicare Limited
                                     Petitioner/Transferor Company No. 3
      WITH

R.G. Scientific Enterprises Private Limited
                                              Petitioner/Transferee Company

                                Through Mr. Kunal Juneja and
                                Mr.Karan Mehra, Advocates for the
                                petitioners
                                Mr. Sanjay Bose, Dy. Registrar of
                                Companies for the Regional Director
                                Mr. Rajiv Bahl, Advocate for the
                                Official Liquidator

SUDERSHAN KUMAR MISRA, J.

1. This joint petition has been filed under Sections 391 and 394 of the

Companies Act, 1956 by the petitioner companies seeking sanction of

the Scheme of Amalgamation of Comet Healthcare and Consulting

Private Limited (hereinafter referred to as the transferor company no. 1);

RG Medicity Private Limited (hereinafter referred to as the transferor

company no. 2); and R.B. Medicare Limited (hereinafter referred to as

the transferor company no.3) with R.G. Scientific Enterprises 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 no. 1 was originally incorporated under

the Companies Act, 1956 on 7 th December, 2010 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi under the name and

style of Comet Education Services Private Limited. The company

changed its name to Comet Healthcare & Consulting Private Limited and

obtained the fresh certificate of incorporation on 7 th December, 2010.

4. The transferor company no. 2 was incorporated under the

Companies Act, 1956 on 28th January, 2005 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

5. The transferor company no. 3 was incorporated under the

Companies Act, 1956 on 25th August, 1993 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

6. The transferee company was originally incorporated under the

Companies Act, 1956 on 28th February, 1986 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi under the name and

style of R.G. Scientific Enterprises Private Limited. The company

changed its name to R. G. Scientific Enterprises Limited and obtained a

fresh certificate of incorporation on 24th September, 2007. The company

again changed its name to R.G. Scientific Enterprises Private Limited

and obtained the fresh certificate of incorporation on 17 th February, 2011.

7. The present authorized share capital of the transferor company

no.1 is Rs.12,50,00,000/- divided into 1,25,00,000 equity shares of

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

company is Rs.12,07,66,670/- divided into 1,20,76,667 equity shares of

Rs.10/- each.

8. The present authorized share capital of the transferor company

no.2, is Rs.10,00,000/- divided into 1,00,00 equity shares of Rs.10/-

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

is Rs.1,00,000/- divided into 10,000 equity shares of Rs.100/- each.

9. The present authorized share capital of the transferor company

no.3 is Rs.3,00,00,000/- divided into 30,00,000 equity shares of Rs.10/-

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

is Rs.1,18,34,000/- divided into 11,83,400 equity shares of Rs.10/- each.

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

Rs.5,00,00,000/- divided into 5,00,000 equity shares of Rs.100/- each.

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

company is Rs.2,34,10,600/- divided into 2,34,106 equity shares of

Rs.100/- each.

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

transferor and transferee companies have been filed on record with the

joint application, being CA(M) 73/2015, earlier filed by the petitioners.

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

and transferee companies, along with the report of the auditors, had also

been filed.

12. 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 submitted by

the petitioners that the objective of the Scheme is to enable appro priate

consolidation of activities of the transferor companies and the transferee

company with pooling and more effective utilization of their resources,

reduction in overhead and other expenses, improvement in various

operating parameters and synergy benefits which will help to streamline

the corporate structure of the group.

13. 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 equity shares to the shareholders of the

transferor companies in the following ratio:-

"49 equity shares of Rs.100/- each of the transferee company for every 6336 equity shares of Rs.10/- each held in the transferor company no. 1."

"01 equity share of Rs.100/- each of the transferee company for every 1000 equity shares of Rs.10/- each held in the transferor company no. 2."

"01 equity share of Rs.100/- each of the transferee company for every 1000 equity shares of Rs.10/- each held in the transferor company no. 3."

14. 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.

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

in their separate meetings held on 10th November, 2014 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.

16. The petitioner companies had earlier filed CA (M) No. 73/2015

seeking directions of this court to dispense with the requirement of

convening the meetings of their equity shareholders, secured and

unsecured creditors, which are statutorily required for sanction of the

Scheme of Amalgamation. Vide order dated 25th May, 2015, this court

allowed the application and dispensed with the requirement of convening

and holding the meetings of the equity shareholders and creditors of the

petitioner companies, to consider and, if thought fit, approve, with or

without modification, the proposed Scheme of Amalgamation.

17. The petitioner companies have thereafter filed the present petition

seeking sanction of the Scheme of Amalgamation. Vide order dated 2nd

July, 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 'Financial Express' (English) and

'Jansatta' (Hindi) 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 10 th August, 2015.

Copies of the newspaper clippings containing the publications have been

filed along with the said affidavit.

18. 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 7th December,

2015 wherein he has stated that he has not received 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 companies do not appear to have been conducted in a manner

prejudicial to the interest of their members, creditors or public interest, as

per second proviso of Section 394(1) of the Companies Act, 1956.

19. 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 14th December, 2015. Relying on Clause

11.1 of the Scheme, he has stated that, upon sanction of the Scheme of

Amalgamation, all the employees of the transferor companies shall

become the employees of the transferee company without any break or

interruption in their services. He has further submitted that in Clause 9.1

of the Scheme, it has been stated that the transferee company shall

follow pooling of interest method for accounting as per Accounting

Standard-14 on 'Accounting for Amalgamation' prescribed under

Companies (Accounting Standards) Rules, 2006. He further submitted

that in Clause 15.1 of the Scheme, it has been stated that upon this

scheme becoming effective, the transferor companies shall stand

dissolved without the process of winding up.

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

from any other party. The petitioner companies, in the affidavit dated 11th

December, 2015 of Mr. Sandeep Aggarwal, authorized signatory of the

transferor company no. 1, have submitted that neither the petitioner

companies nor their counsel have received any objection pursuant to the

citations published in the newspapers on 10 th August, 2015.

21. Considering the approval accorded by the equity 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, 2014, the transferor

companies no. 1 to 3 shall stand dissolved without undergoing the

process of winding up.

22. 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 already directed vide order

dated 17.12.2015, the petitioners shall deposit a sum of Rs.1,00,000/- by

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

23. The petition is allowed in the above terms.

Dasti.

SUDERSHAN KUMAR MISRA, J.

February 10, 2016