Mallet Properties Private ... vs ...
2016 Latest Caselaw 4863 Del

                   IN THE HIGH COURT OF DELHI
                  COMPANY PETITION NO. 585/2015

                                            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:

Mallet Properties Private Limited
                                    Petitioner/Transferor Company No. 1

Alight Advisory Services Private Limited
                                     Petitioner/Transferor Company No. 2

Suprava Agro Estates Private Limited
                                   Petitioner/Transferor Company No. 3
     WITH

Bahri Estates 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 Mallet Properties Private Limited

(hereinafter referred to as the transferor company no. 1); Alight Advisory

Services Private Limited (hereinafter referred to as the transferor

company no. 2) and Suprava Agro Estates Private Limited (hereinafter

referred to as the transferor company no. 3) with Bahri Estates 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 originally incorporated under

the Companies Act, 1956 on 6th February, 2007 with the Registrar of

Companies, West Bengal under the name and style of Mallet Dealcomm

Private Limited. The company changed its name to Mallet Properties

Private Limited. Thereafter, the company shifted its registered office from

the State of West Bengal to Delhi and obtained a certificate in this regard

from the Registrar of Companies, NCT of Delhi & Haryana at New Delhi

on 26th November, 2009.

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

Companies Act, 1956 on 2nd March, 2005 with the Registrar of

Companies, West Bengal. The company shifted its registered office from

the State of West Bengal to Delhi and obtained a certificate in this regard

from the Registrar of Companies, NCT of Delhi & Haryana at New Delhi

on 8th October, 2012.

5. The transferor company no. 3 was incorporated under the

Companies Act, 1956 on 17th April, 2007 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

6. The transferee company was incorporated under the Companies

Act, 1956 on 26th December, 1996 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.21,00,000/- divided into 2,10,000 equity shares of Rs.10/-

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

is Rs.20,95,000/- divided into 2,09,500 equity shares of Rs.10/- each.

8. The present authorized share capital of the transferor company

no.2 is Rs.36,00,000/- divided into 3,60,000 equity shares of Rs.10/-

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

is Rs.35,45,000/- divided into 3,54,500 equity shares of Rs.10/- each.

9. The present authorized share capital of the transferor company

no.3 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.

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

Rs.4,20,00,000/- divided into 42,00,000 equity shares of Rs.10/- each.

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

Rs.2,05,22,580/- divided into 20,52,258 equity shares of Rs.10/- each.

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) 59/2015, earlier filed by the petitioners.

The audited balance sheets, as on 31st March, 2014, along with the

reports of the auditors, of the transferor and transferee companies 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 claimed by

the petitioners that the amalgamation will provide greater efficiency in

cash management of the amalgamated entity & unfettered access to

cash flow generated by combined business which can be deployed more

efficiently to fund organic and inorganic growth opportunities, to

maximize shareholders' value. It is further claimed that the proposed

Scheme will provide greater integration and greater financial strength for

the transferee company, which would result in maximizing overall

shareholders' value and will improve the competitive position of the

combined entity.

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:

"13 equity shares of Rs.10/- each of the transferee company for every 02 equity shares of Rs.10/- each held by the shareholders in the transferor company no. 1."

"04 equity shares of Rs.10/- each of the transferee company for every 03 equity shares of Rs.10/- each held by the shareholders in the transferor company no. 2."

"01 equity share of Rs.10/- each of the transferee company for every 01 equity share of Rs.10/- each held by the shareholders 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 or under Sections 206

to 229 of the Companies Act, 2013 are pending against the petitioner

companies.

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

in their separate meetings held on 30th January, 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. 59/2015

seeking directions of this court to dispense with the requirement of

convening the meetings of the equity shareholders, secured and

unsecured creditors of the transferor companies and equity shareholders

of the transferee company and for convening of separate meetings of the

secured and unsecured creditors of the transferee company, which are

statutorily required for sanction of the Scheme of Amalgamation. Vide

order dated 29th May, 2015 this court allowed the application and

dispensed with the requirement of convening and holding the meetings of

the equity shareholders, secured and unsecured creditors of the

transferor companies and equity shareholders of the transferee company

and directed convening of separate meetings of the secured and

unsecured creditors of the transferee company, to consider and, if

thought fit, approve, with or without modification, the proposed Scheme

of Amalgamation.

17. The Chairpersons of the ordered meetings of the secured and

unsecured creditors of the transferee company have filed their reports

stating that the meetings were duly held on 10th July, 2015, as directed,

and that the Scheme of Amalgamation has been approved unanimously

by the secured and unsecured creditors of the transferee company,

present and voting, in the meetings.

18. The petitioner companies have thereafter filed the present petition

seeking sanction of the Scheme of Amalgamation. Vide order dated 19th

August, 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 'Jansatta'

(Hindi) 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 12th January, 2016. Copies of

the newspaper clippings containing the publications have been filed

along with the said affidavit.

19. 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 2nd 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.

20. 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 15th January, 2016. Relying on Clause

3.1.2(g) 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 5.2(c) of Part-V of the Scheme, it has been stated that the

accounting for all the transferor companies and treatment of goodwill or

reserves, if any, in the books of the transferee company shall be in

accordance with the provisions of the Accounting Standard-14 issued by

the Institute of Chartered Accountants of India. He further submitted that

in Clause 5.19 of Part-V 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.

21. Although the Regional Director has not raised any objection to the

proposed Scheme, but in para 6 of his report he has stated that as per

the letter dated 31.12.2015 received from the Income Tax Department,

the transferor company no. 1 has an outstanding demand amount of

Rs.1,415/- for A.Y. 2009-10. In response to the aforesaid observation, the

petitioner companies in the affidavit dated 13th May, 2016 of

Ms.Sangeeta Bahri, Director of the petitioner companies, have stated that

the transferor company no. 1 has paid the outstanding amount of

Rs.1,415/- on 18.01.2016. A copy of the challan evidencing payment has

also been annexed with the said affidavit. In view of the above, the

observation made by the Regional Director stands satisfied.

22. 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. Hemant Bahri, 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 12th January, 2016.

23. 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.

24. 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.

25. The petition is allowed in the above terms.

Dasti.

SUDERSHAN KUMAR MISRA, J.

July 27, 2016