Bgk Commodities Private Limited vs ...
2016 Latest Caselaw 3621 Del

                  IN THE HIGH COURT OF DELHI
                 COMPANY PETITION NO. 749/2015

                                            Reserved on 21st 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:

BGK Commodities Private Limited
                                      Petitioner/Transferor Company No. 1

BGNS Infratech Private Limited
                                      Petitioner/Transferor Company No. 2

Kay Ess Aar Infratech Private Limited
                                    Petitioner/Transferor Company No. 3

Panjwani Properties Private Limited
                                      Petitioner/Transferor Company No. 4
      WITH

BGK Infratech Private Limited
                                           Petitioner/Transferee Company

                                Through    Mr.     Mukesh     Sukhija,
                                Advocate for the petitioners
                                Mr. Sanjay Bose, Dy. Registrar of
                                Companies for the Regional Director


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 BGK Commodities Private Limited

(hereinafter referred to as the transferor company No. 1), BGNS Infratech

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

Kay Ess Aar Infratech Private Limited (hereinafter referred to as the

transferor company No. 3) and Panjwani Properties Private Limited

(hereinafter referred to as the transferor company No. 4) with BGK

Infratech 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 24th October, 2008 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 31st January, 2007 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 17th November, 2006 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 5th November, 1986 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

7. The transferee company was originally incorporated under the

Companies Act, 1956 on 17th December, 2004 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi under the name and

style of S. S. Horticultures Private Limited. The company changed its

name to BGK Infratech Private Limited and obtained the fresh certificate

of incorporation on 15th April, 2015.

8. The present authorized share capital of the transferor company

no.1 is Rs.50,00,000/- divided into 5,00,000 equity shares of Rs.10/-

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

is Rs.1,50,000/- divided into 15,000 equity shares of Rs.10/- each.

9. The present authorized share capital of the transferor company

no.2 is Rs.1,50,00,000/- divided into 15,00,000 equity shares of Rs.10/-

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

is Rs.1,50,00,000/- divided into 15,00,000 equity shares of Rs.10/- each.

10. The present authorized share capital of the transferor company

no.3 is Rs.25,00,000/- divided into 2,50,000 equity shares of Rs.10/-

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

is Rs.22,00,000/- divided into 2,20,000 equity shares of Rs.10/- each.

11. The present authorized share capital of the transferor company

no.4 is Rs.1,25,00,000/- divided into 12,50,000 equity shares of Rs.10/-

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

is Rs.1,24,90,000/- divided into 12,49,000 equity shares of Rs.10/- each.

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

Rs.7,68,00,000/- divided into 62,30,000 equity shares of Rs.10/- each

aggregating to Rs.6,23,00,000/-; 10,50,000 18% non-cumulative

redeemable optionally convertible preference shares of Rs.10/- each

aggregating to Rs.1,05,00,000/-; and 4,00,000 9% non-cumulative

redeemable optionally convertible preference shares of Rs.10/-

aggregating to Rs.40,00,000/-. The issued, subscribed and paid-up share

capital of the company is Rs.3,23,00,200/- divided into 32,30,020 equity

shares of Rs.10/- each.

13. 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) 147/2015, 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.

14. 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 companies no. 1, 2 & 4 are earning

income out of sale of plants; transferor company no. 3 is not engaged in

any business activity and the transferee company is engaged in the

agricultural activities. It is claimed that the proposed amalgamation would

result in business synergy and consolidation of these companies into one

large company with a stronger asset base. It is further 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

resource 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.

15. 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:-

"2538 equity shares of Rs.10/- each of the transferee company for every 100 equity shares of Rs.10/- each held in the transferor company no. 1."

"19 equity shares of Rs.10/- each of the transferee company for every 100 equity shares of Rs.10/- each held in the transferor company no. 2."

"25 equity shares of Rs.10/- each of the transferee company for every 100 equity shares of Rs.10/- each held in the transferor company no. 3."

"10 equity shares of Rs.10/- each of the transferee company for every 100 equity shares of Rs.10/- each held in the transferor company no. 4."

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

Sections 235 to 251 of the Companies Act, 1956 are pending against the

petitioner companies.

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

in their separate meetings held on 30th 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.

18. The petitioner companies had earlier filed CA (M) No. 147/2015

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 21st September, 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 companies and equity shareholders,

secured and unsecured creditors of the transferee company, there being

no secured creditors of the transferor companies, to consider and, if

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

of Amalgamation.

19. The petitioner companies have thereafter filed the present petition

seeking sanction of the Scheme of Amalgamation. Vide order dated 30th

November, 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) 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 22nd December, 2015. Copies of

the newspaper clippings containing the publications have been filed

along with the said affidavit.

20. 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 13th 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.

21. 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 19th April, 2016 stating that he had no

objection to the proposed Scheme of Amalgamation.

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

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

18th April, 2016 of Mr. Gaurav Sekhri, director of transferor companies

no. 1 & 2 and the transferee company and Mr. Gautam Sekhri, director of

the transferor companies no. 3 & 4 have submitted that neither the

petitioner companies nor their counsel have received any objection

pursuant to the citations published in the newspapers on 22nd December,

2015.

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 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 4 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 21.04.2016, 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.

May 16, 2016