Cns Infotech (India) Private ... vs ...
2016 Latest Caselaw 4627 Del

                   IN THE HIGH COURT OF DELHI
                  COMPANY PETITION NO. 336/2015
                                           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(2) & 394 of the
Companies Act, 1956 read with Rule 9 of the
Companies (Court) Rules, 1959

Scheme of Amalgamation of:

CNS Infotech (India) Private Limited
                                          Petitioner/Transferor Company
      WITH

Ratna Commercial Enterprises Private Limited
                                        Petitioner/Transferee Company

                               Through Mr. Sudhir K. Makkar and
                               Ms.Meenakshi Singh, 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(2) and 394 of

the Companies Act, 1956 read with Rule 9 of the Companies (Court)

Rules, 1959 by the petitioner companies seeking sanction of the Scheme

of Amalgamation of CNS Infotech (India) Private Limited (hereinafter

referred to as the transferor company) with Ratna Commercial

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 was incorporated under the Companies

Act, 1956 on 10th June, 2005 with the Registrar of Companies, NCT of

Delhi & Haryana at New Delhi.

4. The transferee company was originally incorporated under the

Companies Act, 1956 on 3rd March, 1979 with the Registrar of

Companies, Rajasthan at Jaipur. Thereafter, the company shifted its

registered office from the State of Rajasthan to Delhi and obtained a

certificate in this regard from the Registrar of Companies, NCT of Delhi &

Haryana at New Delhi on 30th July, 1985.

5. The present authorized share capital of the transferor company 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.2,42,99,100/- divided into 24,29,910 equity shares of Rs.10/- each.

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

Rs.5,00,00,000/- divided into 49,70,200 equity shares of Rs.10/- each

aggregating to Rs.4,97,02,000/-; 24,400 4% non-cumulative redeemable

preference shares of Rs.10/- each aggregating to Rs.2,44,000/-; 5,000

4% non-cumulative redeemable preference shares of Rs.10/- each

aggregating to Rs.50,000/- and 400 8% preference shares of Rs.10/-

each aggregating to Rs.4,000/-. The issued, subscribed and paid-up

share capital of the company is Rs.3,12,00,000/- divided into 31,20,000

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 with the

joint application, being CA(M) 176/2014, 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.

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 affidavits. It is claimed by

the applicants that the proposed Amalgamation would enable pooling of

physical, financial and human resources of these companies for their

most beneficial utilization in the combined entity. It is further claimed that

the proposed Scheme will result in usual economies of a centralized and

large company including elimination of duplicate work, reduction in

overheads, better and more productive utilization of human and other

resources and enhancement of overall business efficiency. It will enable

these companies to combine their managerial and operating strength, to

build a wider capital and financial base and to promote and secure

overall growth of their businesses.

9. So far as the share exchange ratio is concerned, the Scheme

provides that since the transferor company is a wholly owned subsidiary

of the transferee company, no new shares will be issued by the

transferee company pursuant to this 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

transferor and transferee companies.

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

in their separate meetings held on 10th October, 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. 176/2014

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 24th December, 2014, this

court allowed the application and dispensed with the requirement of

convening and holding the meetings of the equity shareholders of the

transferor and transferee companies, there being no secured or

unsecured 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 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 'Statesman' (English) and

'Rashtriya Sahara' (Hindi) editions. An affidavit has been filed by the

petitioners showing compliance regarding publication of citations in the

aforesaid newspapers on 30th September, 2015. 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 5th February,

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. 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 5th May, 2016 stating therein that the

ROC in his report has not made any adverse comments to the Scheme of

Amalgamation and that the Regional Director has no objection to the

proposed Scheme.

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

from any other party. The petitioner companies, in the affidavit dated 5th

May, 2016 of Mr. Pankaj Bhardwaj, authorized signatory of the petitioner

companies, have submitted that the petitioner companies have not

received any objection pursuant to the citations published in the

newspapers on 30th September, 2015. The petitioners have also placed

on record the 'no objection certificate' issued by the Reserve Bank of

India.

17. Considering the approval accorded by the equity shareholders,

there being no 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.

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 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.

19. The petition is allowed in the above terms.

Dasti.

SUDERSHAN KUMA R MISRA, J.

July 19, 2016