Delhi High Court
Unison Developers Private ... vs ... on 19 July, 2016
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 373/2015
Reserved on 10th May, 2016
Date of pronouncement: 19th July, 2016
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):
And
Petition under Sections 391 to 394 of the
Companies Act, 1956
Scheme of Amalgamation of:
Unison Developers Private Limited
Petitioner/Transferor Company
WITH
Unison Infratech Private Limited
Petitioner/Transferee Company
Through Mr. V.V. Manoharan with
Mr.Awanish Kumar and Ms. Rupbala,
Advocates for the petitioners
Ms. Aparna Mudiam, Asstt. 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 to 394 of the
Companies Act, 1956 by the petitioner companies seeking sanction of
the Scheme of Amalgamation of Unison Developers Private Limited
(hereinafter referred to as the transferor company) with Unison Infratech
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 originally incorporated under the
Companies Act, 1956 on 20th October, 2003 with the Registrar of
Companies, U.P. & Uttaranchal at Kanpur. The company shifted its
registered office from the state of Uttarakhand to Delhi and obtained a
certificate in this regard from the Registrar of Companies, NCT of Delhi &
Haryana at New Delhi on 26th August, 2014.
4. The transferee company was incorporated under the Companies
Act, 1956 on 23rd October, 2008 with the Registrar of Companies, NCT of
Delhi & Haryana at New Delhi.
5. The present authorized share capital of the transferor company is
Rs.1,00,00,000/- divided into 10,00,000 equity shares of Rs.10/- each.
The present issued, subscribed and paid-up share capital of the
company is Rs.64,62,500/- divided into 6,46,250 equity shares of Rs.10/-
each.
6. The present authorized share capital of the transferee company is
Rs.1,00,00,000/- divided into 10,00,000 equity shares of Rs.10/- each.
The present issued, subscribed and paid-up share capital of the
company is Rs.90,86,000/- divided into 9,08,600 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 report of the auditors, and the
provisional accounts of the transferor and transferee companies, as on
30th November, 2014, have 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 submitted by
the petitioners that since both companies are engaged in same line of
business, the proposed amalgamation will consolidate their business
operations and provide significant impetus to their growth. It is claimed
that the proposed amalgamation will result in reduction of overheads,
administrative, managerial and other expenditure and bring about
operational rationalization, efficiency and lead to optimal utilization of
resources.
9. So far as the share exchange ratio is concerned, the Scheme
provides that 27.68% of the share capital representing 2,51,500 equity
shares of the transferee company is held by the transferor company.
Therefore, no shares of the transferee company shall be allotted to the
extent of transferor's company holding in the transferee company. It is
further provided 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:
"166 equity shares of Rs.10/- each of the transferee
company, credited as fully paid-up, for every 100 fully paid-
up equity shares of Rs.10/- each held in the transferor
company."
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 15th December, 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.
12. The petitioner companies had earlier filed CA (M) No. 28/2015
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 14th 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 creditors of the petitioner companies, 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 28th
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 'Business Standard' (English) and
(Hindi) Delhi editions. Affidavit of service has been filed by the petitioners
showing compliance regarding service on the Official Liquidator and the
Regional Director (Northern Region) and also regarding publication of
citations in the aforesaid newspapers on 21st August, 2015 and 22nd
August, 2015 respectively. Copies of the newspaper clippings containing
the publications have been filed along with the said affidavit.
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 4th January, 2016
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 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. Although the Official Liquidator has not raised any objection to the
proposed Scheme of Amalgamation but in para 9 of his report he has
submitted that the transferor company has filed an appeal before the
Commissioner of Income Tax (Appeals) against the order of assessment
dated 29.03.2014 made under Section 143(3)/148 of the Income Tax Act
for the assessment year 2008-09. In response to the aforesaid
observation, the applicant companies in the affidavit dated 12th January,
2016 of Mr. Amit Agarwal, authorized signatory of the transferor
company, while referring to para 12.1 of the Scheme, has submitted that
the transferee company undertakes to have all legal or other proceedings
initiated by or against the transferor company referred to in clause 12.1 of
the Scheme, transferred in its name and to have the same continued,
prosecuted and enforced by or against the transferee company, to the
exclusion of the transferor company. In view of the aforesaid, the
observation made by the Official Liquidator stands satisfied.
16. 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 23rd March, 2016 stating that the ROC in
his report has not made any adverse comments against the Scheme of
Amalgamation and that the Regional Director has no objection to the
proposed Scheme.
17. No objection has been received to the Scheme of Amalgamation
from any other party. The petitioner companies, in the affidavits dated 8th
April, 2016 of Mr. Amit Aggarwal, director of the transferor company and
Mr. Anuj Aggarwal, director 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 21st
August, 2015 and 22nd August, 2015.
18. 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
company shall stand dissolved without undergoing the process of winding
up.
19. 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 company
states that the same is acceptable to him. As already directed vide order
dated 10.05.2016, the petitioners shall deposit a sum of Rs.1,00,000/- by
way of costs with the Common Pool Fund of the Official Liquidator.
20. The petition is allowed in the above terms.
Dasti.
SUDERSHAN KUMAR MISRA, J.
July 19, 2016
