Delhi High Court
Gi Executive Solutions Private ... vs ... on 27 July, 2016
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 750/2015
Reserved on 20th May, 2016
Date of pronouncement: 27th 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:
GI Executive Solutions Private Limited
Petitioner/Transferor Company No. 1
GI Human Resources and Services Private Limited
Petitioner/Transferor Company No. 2
WITH
Elixir Web Solutions Private Limited
Petitioner/Transferee Company
Through Mr. Saurabh Kalia, Advocate
for the petitioners
Ms. Aparna Mudiam, Asstt. Registrar
of Companies for the Regional Director
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 GI Executive Solutions Private Limited
(hereinafter referred to as the transferor company No. 1) and GI Human
Resources and Services Private Limited (hereinafter referred to as the
transferor company No. 2) with Elixir Web Solutions 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 21st December, 2010 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 9th February, 2009 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
5. The transferee company was incorporated under the Companies
Act, 1956 on 9th April, 2007 with the Registrar of Companies, NCT of
Delhi & Haryana at New Delhi.
6. The present authorized share capital of the transferor company
no.1 is Rs.1,00,000/- divided into 10,000 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.10/- each.
7. The present authorized share capital of the transferor company
no.2 is Rs.20,00,00,000/- divided into 2,00,00,000 equity shares of
Rs.10/- each. The issued, subscribed and paid-up share capital of the
company is Rs.19,99,83,300/- divided into 1,99,98,330 equity shares of
Rs.10/- each.
8. The present authorized share capital of the transferee company is
Rs.40,00,00,000/- divided into 4,00,00,000 equity shares of Rs.10/- each.
The issued, subscribed and paid-up share capital of the company is
Rs.37,40,00,000/- divided into 3,74,00,000 equity shares of Rs.10/- each.
9. Copies of Memorandum and Articles of Association of the
transferor and transferee companies have been filed on record with the
joint application, being CA(M) 141/2015, earlier filed by the petitioners.
The audited balance sheets, as on 31st March, 2014, of the transferor and
transferee companies had also been filed.
10. 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 claimed by
the petitioners that the proposed amalgamation would result in greater
efficiency in resource management, cost savings resulting from
rationalization, standardization and simplification of business processes.
It is further claimed that the proposed amalgamation would result in
improved organizational capability arising from pooling of financial,
managerial and technical resources and will also maximize the overall
shareholders value by strengthening its core competencies.
11. 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 no. 2 in the following ratio:-
"01 fully paid up equity share of Rs.10/- each of the transferee
company for every 09 fully paid up equity shares of Rs.10/-
each held by the shareholders in the transferor company
no.2."
It has been further provided that since the transferor company
no.1 is a wholly owned subsidiary of the transferee company, no
consideration shall be payable by the transferee company pursuant to
the amalgamation and the investment in the transferor company no. 1
held by the transferee company would stand cancelled.
12. It has been submitted by the petitioners that no proceedings under
Sections 235 to 251 of the Companies Act, 1956 and/or Sections 206 to
229 of the Companies Act, 2013 are pending against the petitioner
companies.
13. The Board of Directors of the transferor and transferee companies
in their separate meetings held on 15th May, 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.
14. The petitioner companies had earlier filed CA (M) No. 141/2015
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 11th September, 2015 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.
15. The petitioner companies have thereafter filed the present petition
seeking sanction of the Scheme of Amalgamation. Vide order dated 6th
October, 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 28th November, 2015. Copies of
the newspaper clippings containing the publications have been filed
along with the said affidavit.
16. 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 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.
17. 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 February, 2016 stating that he has no
objection to the proposed Scheme of Amalgamation.
18. The Regional Director has not raised any objection to the proposed
Scheme. But in response to his observation made in para 7 of his report
regarding the foreign/non-residents having interest/shares in the
petitioner companies, the petitioner companies in the affidavit dated 5th
February, 2016 of Mr. Asim Handa, Director of the petitioner companies,
have stated that they shall comply with the provisions of Foreign
Exchange Management Act and other applicable laws, if any, with regard
to the said shareholding.
19. No objection has been received to the Scheme of Amalgamation
from any other party. The petitioner companies, in the affidavit dated 17th
May, 2016 of Mr. Asim Handa, Director of the petitioner companies have
submitted that neither the petitioner companies nor their counsel have
received any objection pursuant to the citations published in the
newspapers on 28th November, 2015.
20. Considering the approval accorded by the equity shareholders of
the petitioner companies, 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 companies no. 1 & 2 shall stand
dissolved without undergoing the process of winding up.
21. 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 20.05.2016, the petitioners shall deposit a sum of Rs.1,00,000/- by
way of costs with the Common Pool Fund of the Official Liquidator.
22. The petition is allowed in the above terms.
Dasti.
SUDERSHAN KUMAR MISRA, J.
July 27, 2016
