Basera Realtech Private Limited vs ....
2016 Latest Caselaw 3620 Del

                   IN THE HIGH COURT OF DELHI
                  COMPANY PETITION NO. 929/2015

                                             Reserved on 27th April, 2016
                                  Date of pronouncement: 16th May, 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

Scheme of Amalgamation of:

Basera Realtech Private Limited
                                      Petitioner/Transferor Company No. 1

Bulbul Buildcon Private Limited
                                      Petitioner/Transferor Company No. 2

Daksh Buildpro Private Limited
                                      Petitioner/Transferor Company No. 3

DR Infra Developers Private Limited
                                      Petitioner/Transferor Company No. 4

Hi-Fashion Apparels Private Limited
                                      Petitioner/Transferor Company No. 5

Kashish Buildpro Private Limited
                                      Petitioner/Transferor Company No. 6

Radhey Infra Developers Private Limited
                                   Petitioner/Transferor Company No. 7

Rama Krishna Infratech Private Limited
                                    Petitioner/Transferor Company No. 8

Shri Ganesh Buildpro Private Limited
                                    Petitioner/Transferor Company No. 9

Vishwas Distributors Private Limited
                                   Petitioner/Transferor Company No. 10



CP 929/2015                                               Page 1 of 14
 Yug Computers Private Limited
                                    Petitioner/Transferor Company No. 11
      WITH

SRK Tradelinks Private Limited
                                          Petitioner/Transferee Company

                                 Through Mr. Dilip Singh and Ms. Neha
                                 Tandon, Advocates for the petitioners
                                 Ms. Aparna Mudiam, Asstt. Registrar
                                 of Companies for the Regional Director
                                 Mr. Ashish Makhija, Advocate for the
                                 Official Liquidator

SUDERSHAN KUMAR MISRA, J.

1. This joint petition has been filed under Sections 391(2) & 394 of

the Companies Act, 1956 by the petitioner companies seeking sanction

of the Scheme of Amalgamation of Basera Realtech Private Limited

(hereinafter referred to as the transferor company no. 1); Bulbul Buildcon

Private Limited (hereinafter referred to as the transferor company no. 2);

Daksh Buildpro Private Limited (hereinafter referred to as the transferor

company no. 3); DR Infra Developers Private Limited (hereinafter

referred to as the transferor company no. 4); Hi-Fashion Apparels Private

Limited (hereinafter referred to as the transferor company no. 5); Kashish

Buildpro Private Limited (hereinafter referred to as the transferor

company no. 6); Radhey Infra Developers Private Limited (hereinafter

referred to as the transferor company no. 7); Rama Krishna Infratech

Private Limited (hereinafter referred to as the transferor company no. 8);

Shri Ganesh Buildpro Private Limited (hereinafter referred to as the

transferor company no. 9); Vishwas Distributors Private Limited

(hereinafter referred to as the transferor company no. 10) and Yug

Computers Private Limited (hereinafter referred to as the transferor

company no. 11) with SRK Tradelinks Private Limited (hereinafter

referred to as 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 25th June, 2009 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 transferor company no. 3 was incorporated under the

Companies Act, 1956 on 8th July, 2009 with the Registrar of Companies,

NCT of Delhi & Haryana at New Delhi.

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

Companies Act, 1956 on 17th August, 2009 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

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

Companies Act, 1956 on 12th June, 2006 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

8. The transferor company no. 6 was incorporated under the

Companies Act, 1956 on 9th July, 2009 with the Registrar of Companies,

NCT of Delhi & Haryana at New Delhi.

9. The transferor company no. 7 was incorporated under the

Companies Act, 1956 on 10th August, 2009 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

10. The transferor company no. 8 was incorporated under the

Companies Act, 1956 on 6th August, 2009 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

11. The transferor company no. 9 was incorporated under the

Companies Act, 1956 on 12th August, 2009 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

12. The transferor company no. 10 was incorporated under the

Companies Act, 1956 on 11th February, 2009 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

13. The transferor company no. 11 was incorporated under the

Companies Act, 1956 on 10th February, 2009 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

14. The transferee company was incorporated under the Companies

Act, 1956 on 10th February, 2009 with the Registrar of Companies, NCT

of Delhi & Haryana at New Delhi.

15. The present authorized share capital of the transferor company

no.1 is Rs.10,00,000/- divided into 10,00,000 equity shares of Rs.1/-

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

is Rs.9,50,000/- divided into 9,50,000 equity shares of Rs.1/- each.

16. The present authorized share capital of the transferor company

no.2 is Rs.10,00,000/- divided into 10,00,000 equity shares of Rs.1/-

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

is Rs.9,55,000/- divided into 9,55,000 equity shares of Rs.1/- each.

17. The present authorized share capital of the transferor company

no.3 is Rs.8,00,000/- divided into 8,00,000 equity shares of Rs.1/- each.

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

Rs.7,50,080/- divided into 7,50,080 equity shares of Rs.1/- each.

18. The present authorized share capital of the transferor company

no.4 is Rs.8,00,000/- divided into 8,00,000 equity shares of Rs.1/- each.

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

Rs.7,62,000/- divided into 7,62,000 equity shares of Rs.1/- each.

19. The present authorized share capital of the transferor company

no.5 is Rs.10,00,000/- divided into 10,00,000 equity shares of Rs.1/-

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

is Rs.9,65,000/- divided into 9,65,000 equity shares of Rs.1/- each.

20. The present authorized share capital of the transferor company

no.6 is Rs.11,00,000/- divided into 11,00,000 equity shares of Rs.1/-

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

is Rs.10,73,000/- divided into 10,73,000 equity shares of Rs.1/- each.

21. The present authorized share capital of the transferor company

no.7 is Rs.5,00,000/- divided into 5,00,000 equity shares of Rs.1/- each.

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

Rs.4,81,150/- divided into 4,81,150 equity shares of Rs.1/- each.

22. The present authorized share capital of the transferor company

no.8 is Rs.12,50,000/- divided into 12,50,000 equity shares of Rs.1/-

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

is Rs.12,23,200/- divided into 12,23,200 equity shares of Rs.1/- each.

23. The present authorized share capital of the transferor company

no.9 is Rs.9,00,000/- divided into 9,00,000 equity shares of Rs.1/- each.

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

Rs.8,59,000/- divided into 8,59,000 equity shares of Rs.1/- each

24. The present authorized share capital of the transferor company

no.10 is Rs.9,00,000/- divided into 9,00,000 equity shares of Rs.1/- each.

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

Rs.9,00,000/- divided into 9,00,000 equity shares of Rs.1/- each.

25. The present authorized share capital of the transferor company

no.11 is Rs.13,50,000/- divided into 13,50,000 equity shares of Rs.1/-

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

is Rs.13,16,000/- divided into 13,16,000 equity shares of Rs.1/- each.

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

Rs.10,00,000/- divided into 10,00,000 equity shares of Rs.1/- each. The

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

Rs.9,20,000/- divided into 9,20,000 equity shares of Rs.1/- each

27. 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) 150/2015, 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.

28. 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 the transferor and transferee companies are closely

held group companies and the proposed amalgamation would result in

business synergy and consolidation of these companies into one large

company with a stronger asset base. It is claimed that the proposed

amalgamation will result in usual economies of a centralized and a 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.

29. 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:

"1,003 equity shares of Rs.1/- each of the transferee company, credited as fully paid up, for every 1,000 equity shares of Rs.1/- each held in the transferor company no. 1."

"1,004 equity shares of Rs.1/- each of the transferee company, credited as fully paid up, for every 1,000 equity shares of Rs.1/- each held in the transferor company no. 2."

"972 equity shares of Rs.1/- each of the transferee company, credited as fully paid up, for every 1,000 equity shares of Rs.1/- each held in the transferor company no. 3."

"974 equity shares of Rs.1/- each of the transferee company, credited as fully paid up, for every 1,000 equity shares of Rs.1/- each held in the transferor company no. 4."

"1,004 equity shares of Rs.1/- each of the transferee company, credited as fully paid up, for every 1,000 equity shares of Rs.1/- each held in the transferor company no. 5."

"1,016 equity shares of Rs.1/- each of the transferee company, credited as fully paid up, for every 1,000 equity shares of Rs.1/- each held in the transferor company no. 6."

"1,777 equity shares of Rs.1/- each of the transferee company, credited as fully paid up, for every 1,000 equity shares of Rs.1/- each held in the transferor company no. 7."

"1,029 equity shares of Rs.1/- each of the transferee company, credited as fully paid up, for every 1,000 equity shares of Rs.1/- each held in the transferor company no. 8."

"991 equity shares of Rs.1/- each of the transferee company, credited as fully paid up, for every 1,000 equity shares of Rs.1/- each held in the transferor company no. 9."

"997 equity shares of Rs.1/- each of the transferee company, credited as fully paid up, for every 1,000 equity shares of Rs.1/- each held in the transferor company no. 10."

"518 equity shares of Rs.1/- each of the transferee company, credited as fully paid up, for every 1,000 equity shares of Rs.1/- each held in the transferor company no. 11."

30. It has been submitted by the petitioners that no proceedings under

Sections 235 to 251 of the Companies Act, 1956 and/or under Sections

210 to 227 of the Companies Act, 2013 are pending against the petitioner

companies.

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

in their separate meetings held on 15th June, 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.

32. The petitioner companies had earlier filed CA (M) No. 150/2015

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 2nd November, 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 and no unsecured

creditors of the transferor companies no. 2, 3, 4, 6, 7, 8, 10 and the

transferee company, to consider and, if thought fit, approve, with or

without modification, the proposed Scheme of Amalgamation.

33. The petitioner companies have thereafter filed the present petition

seeking sanction of the Scheme of Amalgamation. Vide order dated 8th

December, 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 'Veer

Arjun' (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 14th March, 2016

Copies of the newspaper clippings containing the publications have been

filed along with the said affidavit.

34. 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 18th April, 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.

35. 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 26th April, 2016 stating that the Registrar

of Companies has not made any adverse comments to the proposed

Scheme and that the Regional Director has no objection to the proposed

Scheme of Amalgamation.

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

from any other party. The petitioner companies, in the affidavits dated

25th April, 2016 of Mr. Sandeep Gaur, authorized signatory of the

transferor companies no. 1, 3, 6, 9 and the transferee company;

Mr.Ramakant Choudhary, authorized signatory of the transferor

companies no. 2, 4 & 7; Mr. Ravinder Kamat, authorized signatory of the

transferor companies no. 5 & 11; Mr. Damodar Sharma, authorized

signatory of the transferor company no. 8; and Mr. Sanjay Ram,

authorized signatory of the transferor company no. 10 have submitted

that neither the petitioner companies nor their counsel have received any

objection pursuant to the citations published in the newspapers on 14th

March, 2016.

37. 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 having not raised 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, 2015, the transferor

companies no 1 to 11 shall stand dissolved without undergoing the

process of winding up.

38. Learned counsel for the Official Liquidator prays that costs of at

least Rs.2,00,000/- 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 27.04.2016, the petitioners shall deposit a sum of Rs.2,00,000/- by

way of costs with the Common Pool Fund of the Official Liquidator.

39. The petition is allowed in the above terms.

Dasti.

SUDERSHAN KUMAR MISRA, J.

May 16, 2016