Treasured Developers Private ... vs ...
2016 Latest Caselaw 1278 Del

                   IN THE HIGH COURT OF DELHI
                  COMPANY PETITION NO. 417/2015

                                    Reserved on 23rd December, 2015
                          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 Section 391, 392 & 394 of the
Companies Act, 1956

Scheme of Amalgamation and Arrangement of:

Treasured Developers Private Limited
                                           Petitioner/Transferor Company
      WITH

Suncity Dhoot Colonizers Private Limited
                                           Petitioner/Transferee Company

                               Through Mr. Vijay Nair, Advocate 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, 392 & 394 of

the Companies Act, 1956 by the petitioner companies seeking sanction

of the Scheme of Amalgamation and Arrangement of Treasured

Developers Private Limited (hereinafter referred to as the transferor

company) with Suncity Dhoot Colonizers 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 27th October, 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 27th July, 2006 with the Registrar of Companies, NCT of

Delhi & Haryana at New Delhi.

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

Rs.22,50,00,000/- divided into 2,25,00,000 equity shares of Rs.10/- each.

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

Rs.22,33,75,590/- divided into 2,23,37,559 equity shares of Rs.10/- each.

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

Rs.21,55,00,000/- divided into 2,15,50,000 equity shares of Rs.10/- each.

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

Rs.21,44,83,800/- divided into 2,14,48,380 equity shares of Rs.10/- each.

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

transferor and transferee companies have been filed on record. The

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

transferee companies, along with the reports of the auditors, have also

been filed.

8. A copy of the Scheme of Amalgamation and Arrangement 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 promoters of the transferee

company approached the transferor company to enter into an agreement

with them to participate in the joint construction, development sale and

management of an integrated township project in Indore, Madhya

Pradesh, by acquiring 1/3rd stake in the transferee company. It is further

submitted that since the transferee company is not in a position to

effectively carry out its business activities in the desired manner,

therefore, it is considered desirable to amalgamate the transferor

company into the transferee company so that the assets and resources

of both the companies can be conveniently and effectively utilized by the

transferee company to carry on its operations more economically and

efficiently. It is claimed that the proposed amalgamation will reduce the

overheads and other expenses facilitating administrative convenience

and ensuring optimum utilization of various sources and resources.

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 equity shares to the shareholders of the

transferor company in the following ratio:

"4800 equity shares of Rs.10/- each of the transferee company, credited as fully paid up, for every 10,000 equity shares of Rs.10/- each held in transferor company."

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

Sections 235 to 251 of the Companies Act, 1956 and/or other applicable

provisions of the Companies Act, 2013 are pending against the petitioner

companies.

11. The Board of Directors of the transferor company and the

transferee company in their separate meetings held on 30th March, 2015

and 1st April, 2015 respectively have unanimously approved the

proposed Scheme of Amalgamation and Arrangement. 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. 86/2015

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 and Arrangement. 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 unsecured creditors of the transferor and transferee

companies, there being no secured creditor of the petitioner companies,

to consider and, if thought fit, approve, with or without modification, the

proposed Scheme of Amalgamation and Arrangement.

13. The petitioner companies have thereafter filed the present petition

seeking sanction of the Scheme of Amalgamation and Arrangement. Vide

order dated 8th 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 'Indian Express‟ (English)

and „Jansatta‟ (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 12th 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 November,

2015 wherein he has stated that he has not received any complaint

against the proposed Scheme of Amalgamation and Arrangement 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 9th December, 2015. Relying on Clause

8.1 of the Scheme, he has stated that, the transferor company does not

have any employees. He has further submitted that in Clause 9.1 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

16.1 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

and Arrangement from any other party. The petitioner companies, in the

affidavits dated 2nd January, 2016 of Mr. Vijay Kumar Rastogi, Director of

the transferor company and Mr. Varun Aggarwal, Director of the

transferee company, have submitted that the petitioner companies have

not received any objection pursuant to the citations published in the

newspapers on 12th August, 2015.

17. Considering the approval accorded by the shareholders and

creditors of the petitioner companies to the proposed Scheme of

Amalgamation and Arrangement and the affidavits filed by the Regional

Director, Northern Region, and the Official Liquidator not raising any

objection to the proposed Scheme of Amalgamation and Arrangement,

there appears to be no impediment to the grant of sanction to the

Scheme of Amalgamation and Arrangement. Consequently, sanction is

hereby granted to the Scheme of Amalgamation and Arrangement 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

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 already directed vide order

dated 23.12.2015, the petitioners shall deposit a sum of Rs.1,00,000/- by

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

19. The petition is allowed in the above terms.

Dasti.

SUDERSHAN KUMAR MISRA, J.

February 18, 2016