Delhi High Court
Abbey Durobuild Private Limited vs -- on 21 March, 2016
Author: Rajiv Shakdher
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgement reserved on: 17.03.2016
% Judgement delivered on:21.03.2016
+ CO.PET. 731/2015
IN THE MATTER OF ABBEY DUROBUILD
PRIVATE LIMITED
.... Petitioner no. 1/ Transferor Company No.1
AND
ABIGAIL LAND DEVELOPERS
PRIVATE LIMITED
...Petitioner no. 2/ Transferor Company No.2
AND
BLUEJAYS TOWN PLANERS
PRIVATE LIMITED
...Petitioner no. 3/ Transferor Company No.3
AND
CORE LAND TOWN PLANNERS
PRIVATE LIMITED
...Petitioner no. 4/ Transferor Company No.4
AND
DOYEN HOUSING AND LAND DEVELOPERS
PRIVATE LIMITED
...Petitioner no. 5/ Transferor Company No.5
AND
GABLE INFRATECH
PRIVATE LIMITED
...Petitioner no. 6/ Transferor Company No.6
CP 731/2015 Page 1 of 11
AND
GAIETY BUILDHOME
PRIVATE LIMITED
...Petitioner no. 7/ Transferor Company No.7
AND
HALO REALTECH
PRIVATE LIMITED
...Petitioner no. 8/ Transferor Company No.8
AND
INGOT PROBUILD
PRIVATE LIMITED
...Petitioner no. 9/ Transferor Company No.9
AND
JUNKET TOWN DEVELOPERS
PRIVATE LIMITED
...Petitioner no. 10/ Transferor Company No.10
AND
MADIA PROBUILD
PRIVATE LIMITED
...Petitioner no. 11/ Transferor Company No.11
AND
NOVEL NESTBUILD
PRIVATE LIMITED
...Petitioner no. 12/ Transferor Company No.12
AND
NOVEL PROMART
CP 731/2015 Page 2 of 11
PRIVATE LIMITED
...Petitioner no. 13/ Transferor Company No.13
AND
NUCLEUS NESTBUILD
PRIVATE LIMITED
...Petitioner no. 14/ Transferor Company No.14
AND
PIKE BUILDTECH
PRIVATE LIMITED
...Petitioner no. 15/ Transferor Company No.15
AND
ROUGE TOWN DEVELOPERS
PRIVATE LIMITED
...Petitioner no. 16/ Transferor Company No.16
AND
STRIVER PROBUILD
PRIVATE LIMITED
...Petitioner no. 17/ Transferor Company No.17
AND
SUPER BUILT REAL ESATES AND LAND
DEVELOPERS PRIVATE LIMITED
...Petitioner no. 18/ Transferor Company No.18
AND
THISTLE TOWN PLANNERS
PRIVATE LIMITED
...Petitioner no. 19/ Transferor Company No.19
AND
CP 731/2015 Page 3 of 11
TOPPERS REAL ESTATES AND LAND
DEVELOPERS PRIVATE LIMITED
...Petitioner no. 20/ Transferor Company No.20
AND
TZAR PROBUILD
PRIVATE LIMITED
...Petitioner no. 21/ Transferor Company No.21
WITH
SUNCITY HI-TECH INFRASTRUCTURES
PRIVATE LIMITED
.... Petitioner no. 22 / Transferee Company
Through: Mr. Saurabh Kedia and Mr. Gursat
Singh, Advs.
Ms Aparna Mudiam, Asstt. ROC.
Mr Rajiv Behl, Adv. for the OL.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J
1.
This is a second motion petition filed jointly by Abbey Durobuild
Private Limited (i.e. petitioner no.1/transferor company no.1), Abigail Land
Developers Private Limited (i.e. petitioner no.2/transferor company no.2),
Bluejays Town Planers Private Limited (i.e. petitioner no.3/transferor
company no.3), Core Land Town Planners Private Limited (i.e. petitioner
no.4/transferor company no.4), Doyen Housing and Land Developers Private
Limited (i.e. petitioner no.5/transferor company no.5), Gable Infratech
Private Limited (i.e. petitioner no. 6/ transferor company no. 6), Gaiety
Buildhome Private Limited (i.e. petitioner no.7/transferor company no.7),
Halo Realtech Private Limited (i.e. petitioner no.8/transferor company no.8),
Ingot Probuild Private Limited (i.e. petitioner no.9/transferor company no.9),
Junket Town Developers Private Limited (i.e. petitioner no.10/transferor
company no.10), Madia Probuild Private Limited (i.e. petitioner
no.11/transferor company no.11), Novel Nestbuild Private Limited (i.e.
petitioner no. 12/ transferor company no. 12), Novel Promart Private Limited
(i.e. petitioner no.13/transferor company no.13), Nucleus Nestbuild Private
Limited (i.e. petitioner no.14/transferor company no.14), Pike Buildtech
Private Limited (i.e. petitioner no.15/transferor company no.15), Rouge
Town Developers Private Limited (i.e. petitioner no.16/transferor company
no.16), Striver Probuild Private Limited (i.e. petitioner no.17/transferor
company no.17), Super Built Real Esates and Land Developers Private
Limited (i.e. petitioner no. 18/ transferor company no. 18), Thistle Town
Planners Private Limited(i.e. petitioner no. 19/ transferor company no. 19),
Toppers Real Estates and Land Developers Private Limited (i.e. petitioner
no. 20/ transferor company no. 20), and Tzar Probuild Private Limited(i.e.
petitioner no. 21/ transferor company no. 21) with Suncity Hi-tech
Infrastructures Private Limited (i.e. petitioner no. 22/ transferee company)
under Section 391 and 394 of the Companies Act, 1956 (hereafter referred to
as the Act) for approval of the scheme of amalgamation (hereafter referred to
as the scheme).
1.1 The transferor companies and transferee company, as referred to
above, will hereafter be collectively referred to as the petitioners.
Furthermore, transferor company nos. 1 to 21 will hereafter be conjointly
referred to as transferor companies.
1.2 The registered office of the petitioners are located within the territorial
jurisdiction of this court.
1.3 The details with respect to incorporation and the petitioners'
authorized, issued, subscribed and paid-up capital are set out in paragraph
nos 1 and 3 of the scheme.
2. The copies of Memorandum and Articles of Association as well as the
profit and loss account and the balance sheet as on 31.03.2014 have been
filed by the petitioners.
3. The Board of Directors (BOD) of the transferor company nos 1 to 5;
transferor company nos 6 to 10; transferor company nos 11 to 15; transferor
company nos 16 to 21 and the transferee company in their separate meetings
held on 06.10.2014, 07.10.2014, 08.10.2014, 09.10.2014 and 01.11.2014
respectively, have unanimously approved the scheme. Copies of the BOD
resolutions whereby, the scheme has been approved are filed with the
petition.
4. The petitioners have averred that the amalgamation of the transferor
companies with the transferee company will provide greater financial
strength and flexibility to the transferee company thereby resulting in
maximizing overall shareholders' value. It has been further claimed that the
amalgamation will also result in improved organizational capabilities and
leadership, cost savings and greater leverage to the transferee company in
operations planning and process optimization.
4.1 Furthermore, the petitioners have claimed that there are no proceedings
pending against them, under Sections 235 to 251 of the Act or under
Sections 206 to 229 of the Companies Act, 2013.
5. To recapitulate, the petitioners had, in the earlier round filed an
application (i.e. the first motion), being: CA(M) No. 37/2015, whereby, a
prayer had been made for dispensing with, the requirement of convening
meetings of the shareholders and creditors (secured and unsecured) of the
petitioners. This court vide order dated 13.08.2015, having regard to the fact
that all the shareholders of the petitioners and all the unsecured creditors of
the transferor company nos. 16 and 19 had given their consent to the scheme,
dispensed with the requirement of convening meetings, as prayed.
5.1 Further, the court, having regard to the fact, that all the unsecured
creditors of transferor company nos 1 to 15, 17, 18, 20 and 21 and,
unsecured creditors, being 99.9% in value (though 60% in number),
belonging to the transferee company had given their consent to the scheme,
dispensed with the requirement of convening meetings of this class of
persons/entities, as well.
6. The petitioners, thereafter, filed the instant petition (i.e. the second
motion). Notice in this petition was issued on 28.09.2015. Notices were
accepted on behalf of both the Regional Director (RD) and the Official
Liquidator (OL). Furthermore, citations were ordered to be published.
7.1 Accordingly, citations were published in the Delhi Editions of Business
Standard (English) and Business Standard (Hindi), on 09.01.2016.
7.2 An affidavit dated 21.01.2016 demonstrating service of the petition on
the RD and the OL and establishing publication of notice of hearing
alongwith the newspaper extracts, was filed by the petitioners.
7.3 Further, the petitioners filed an affidavit dated 02.02.2016, wherein it is
averred that the petitioners, have not received any objections/complaints
from any third party qua the scheme.
8. Pursuant thereto, the RD filed its affidavit/report under Section 394 A
of the Act. In the affidavit/report, the RD relied upon the general circular
bearing no. 53/2011, dated 26.07.2011 and the circular bearing no. 1/2014,
dated 15.01.2014. Based on the directions contained in the said circulars, the
RD, sent communications to the ROC and the Income Tax Department (I.T.
Department) seeking their response to the scheme. However, no
comment/response of the I.T. Department has, apparently, been received in
the matter.
8.1 The RD, evidently, has received information from the ROC vide
communication dated 28.01.2016 which is indicative of the fact that the
ROC has not made any adverse comments qua the scheme.
8.2 Therefore, in so far as the RD is concerned, there are no objections
taken by him to the scheme.
8.3 In so far as the OL is concerned, he has inter alia, stated in his report,
that no complaint qua the scheme has been received by him from any
interested person or party. The OL has also averred in his report that on the
basis of information supplied by the petitioners, it appears, the affairs of the
transferor companies have been conducted in a manner which could not be
construed as being prejudicial to either the interest of their members or the
public at large. In other words, affairs of the transferor companies,
according to the OL, do not fall foul of the provisions of the second proviso
to Section 394(1) of the Act.
8.4 Thus, the OL, in effect, has conveyed that he has no objections to the
scheme being sanctioned.
9. To be noted, the scheme in clause 6.2.7 provides that all employees of
the transferor companies in service on the effective date, shall become the
employees of the transferee company on such date without any break or
interruption in service, and on terms and conditions as to employment,
similar to those subsisting in the transferor companies, as on the said date.
10. As per clause 14.1 of the scheme, as all the transferor companies are the
wholly owned subsidiaries of the transferee company, no consideration shall
be payable by the transferee company pursuant to the amalgamation and the
investments in all the transferor companies held by the transferee company
would stand cancelled.
11. Furthermore, as per clause 10 of the scheme, the transferor companies
shall stand dissolved without being wound up.
12. In terms of clause 16.1.1 of the scheme, the transferee company shall
follow pooling of interest method as prescribed under Accounting Standard
14 as notified under Companies (Accounting Standards) Rules 2006.
13. Accordingly, in view of the approval accorded to the scheme by the
shareholders and creditors (i.e. secured and unsecured) of the petitioners and,
given the fact, that the RD and the OL, have not articulated any objections to
the scheme, as indicated above, in my opinion, there appears to be no
impediment in the grant of sanction to the scheme. Consequently, sanction
is granted to the scheme in terms of Section 391 and 394 of the Act. The
petitioners will, however, comply with all statutory requirements, as
mandated in law.
13.1 A certified copy of the order, sanctioning the scheme, will be filed
with the ROC, within thirty (30) days of its receipt.
14. It is further directed that the petitioners will comply with all the
provisions of the scheme and, in particular, those which are referred to
hereinabove.
15. In any event, notwithstanding what is stated by the petitioners, the
transferee company will file an undertaking with this court, within two
weeks from today, stating therein, that it will take over and defray all
liabilities of the transferor companies. It is also made clear, that the
concerned Statutory Authority will be entitled to proceed against the
transferee company qua any liability which it would have fastened on to the
transferor companies for the relevant period, and that, which may arise on
account of the scheme being sanctioned.
15.1 Notwithstanding the above, if there is any deficiency found or, any
violation committed of any enactment, statutory rule or regulation, the
sanction granted by this court to the scheme will not come in the way of any
action being taken, albeit, in accordance with law, against the concerned
persons, directors and officials of the petitioners.
16. In terms of the provisions of Section 391 and 394 of the Act, and in
consonance with clause 6.1 of the scheme, the entire business and
undertakings, properties and assets, rights, benefits and interests of the
transferor companies will stand transferred to and / or vest in the transferee
company without any further act or deed. Similarly, in terms of clause 6.2.3
of the scheme, all debts, liabilities, duties and obligations of the transferor
companies shall stand transferred to the transferee company without any
further act or deed.
16.1 More particularly, upon the scheme coming into effect, the transferor
companies shall stand dissolved without having to follow the process of
winding up.
16.2 It is made clear, that this order will not be construed as an order
granting exemption from: payment of stamp duty or, taxes or, other penalties
/ charges, if any, payable, as per the relevant provisions of law.
17. Consequently, the petition is allowed and disposed of in the aforesaid
terms.
RAJIV SHAKDHER, J
MARCH 21, 2016
