Bali Projects Private Limited vs ...
2016 Latest Caselaw 1262 Del

                   IN THE HIGH COURT OF DELHI
                  COMPANY PETITION NO. 213/2015

                                        Reserved on 7th January, 2016
                           Date of pronouncement: 18th February, 2016
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):

And

Petition under Sections 391 & 394 of the
Companies Act, 1956

Scheme of Amalgamation of:

Bali Projects Private Limited
                                    Petitioner/Transferor Company No. 1

Decowel Housing Private Limited
                                    Petitioner/Transferor Company No. 2

Himal Projects & Investments Private Limited
                                   Petitioner/Transferor Company No. 3
      WITH

Ramesh Aggarwal & Associates Private Limited
                                       Petitioner/Transferee Company

                                Through Mr. P. K. Mittal and Mr. M.K.
                                Sinha, Advocates for the petitioners
                                Ms.     Aparna     Mudiam,    Assistant
                                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 & 394 of the

Companies Act, 1956 by the petitioner companies seeking sanction of

the Scheme of Amalgamation of Bali Projects Private Limited (hereinafter

referred to as the transferor company no. 1); Decowel Housing Private

Limited (hereinafter referred to as the transferor company no. 2); and

Himal Projects & Investments Private Limited (hereinafter referred to as

the transferor company no. 3) with Ramesh Aggarwal & Associates

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 incorporated under the

Companies Act, 1956 on 11th July, 1994 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

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

Companies Act, 1956 on 11th July, 2000 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 2nd August, 1995 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

6. The transferee company was incorporated under the Companies

Act, 1956 on 5th March, 1992 with the Registrar of Companies, NCT of

Delhi & Haryana at New Delhi.

7. The present authorized share capital of the transferor company

no.1 is Rs.15,00,000/- divided into 1,50,000 equity shares of Rs.10/-

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

company is Rs.9,60,000/- divided into 96,000 equity shares of Rs.10/-

each fully paid up.

8. The present authorized share capital of the transferor company

no.2 is Rs.40,00,000/- divided into 4,00,000 equity shares of Rs.10/-

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

company is Rs.39,02,000/- divided into 3,90,200 equity shares of Rs.10/-

each fully paid up.

9. The present authorized share capital of the transferor company

no.3 is Rs.70,00,000/- divided into 70,000 equity shares of Rs.100/-

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

company is Rs.68,82,000/- divided into 68,820 equity shares of Rs.100/-

each fully paid up.

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

Rs.3,00,00,000/- divided into 30,00,000 equity shares of Rs.10/- each.

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

company is Rs.3,00,00,000/- divided into 30,00,000 equity shares of

Rs.10/- each fully paid up.

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) 38/2015, 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 shareholders of the transferor and transferee

companies are almost common. It is claimed that the Scheme will result

in pooling of their financial, commercial and other resources, economies

of scales and reduction of overheads. It is further claimed that with

enhanced capabilities and resources at its disposal, the transferee

company will have greater flexibility and strength to meet requirements

for further growth of business activities.

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:-

"01 equity share of Rs.10/- each of the transferee company, credited as fully paid up, for every 2.5 equity shares of Rs.10/- each fully paid up held in the transferor company no. 1."

"01 equity shares of Rs.10/- each of the transferee company, credited as fully paid up, for every 02 equity shares of Rs.10/- each fully paid up held in the transferor company no. 2."

"07 equity shares of Rs.10/- each of the transferee company, credited as fully paid up, for every 01 equity share of Rs.100/- each fully paid up 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 16th February, 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.

16. The petitioner companies had earlier filed CA (M) No. 38/2015

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 16th April, 2015, this court

allowed the application and dispensed with the requirement of convening

and holding the meetings of the equity shareholders of the transferor

companies and equity shareholders and unsecured creditors of the

transferee company, there being no secured or unsecured creditors of

the transferor companies and no secured creditors of the transferee

company, 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 28th

April, 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 'Statesman' (English) and 'Veer

Arjun' (Hindi) editions. The petitioners have filed the affidavit showing

compliance regarding publication of citations in the aforesaid newspapers

on 14th July, 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 10th November,

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 20th November, 2015. Relying on Clause

9 of Part-III 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 6 of Part-III of the Scheme, it has been stated that the transferee

company shall follow the method of accounting as prescribed for the

pooling of interest method under Accounting Standard-14 as notified

under the Companies (Accounting Standards) Rules, 2006. He further

submitted that in Clause 21.2 of Part-III 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 28th

October, 2015 of Mr. Ramesh Aggarwal, Director of the petitioner

companies, have submitted that the petitioner companies have not

received any objection pursuant to the citations published in the

newspapers on 14th July, 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 07.01.2016, 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 18, 2016