Baani Facilities Management ... vs ...
2016 Latest Caselaw 3623 Del

                  IN THE HIGH COURT OF DELHI
                 COMPANY PETITION NO. 850/2015

                                          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 to 394 of the
Companies Act, 1956

Scheme of Amalgamation of:

Baani Facilities Management Private Limited
                                         Petitioner/Transferor Company
      WITH

Baani Technology Services Private Limited
                                        Petitioner/Transferee Company

                              Through Mr. Santosh Kumar, Advocate
                              for the petitioners
                              Ms. Aparna Mudiam, Asstt. Registrar
                              of Companies for the Regional Director
                              Mr. Rajiv Bahl, Advocate for the
                              Official Liquidator

SUDERSHAN KUMAR MISRA, J.

1. This joint petition has been filed under Section 391 to 394 of the

Companies Act, 1956 by the petitioner companies seeking sanction of

the Scheme of Amalgamation of Baani Facilities Management Private

Limited (hereinafter referred to as the transferor company) and Baani

Technology Services 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 was incorporated under the Companies

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

of Delhi & Haryana at New Delhi.

4. The transferee company was incorporated under the Companies

Act, 1956 on 3rd November, 2005 with the Registrar of Companies, NCT

of Delhi & Haryana at New Delhi.

5. The present authorized share capital of the transferor company is

Rs.5,00,000/- divided into 50,000 equity shares of Rs.10/- each. The

issued, subscribed and paid up capital of the company is Rs.1,00,000/-

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

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

Rs.5,00,00,000/- divided into 50,00,000 equity shares of Rs.10/- each.

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

Rs.5,00,00,000/- divided into 50,00,000 equity shares of Rs.10/- each.

7. Copies of the Memorandum and Articles of Association of the

transferor and transferee companies have been filed on record. The

audited balance sheets, as on 31st March, 2014, of the transferor and

transferee companies, along with the auditor's report, have also been

filed.

8. 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 will result in greater

integration and greater financial strength and flexibility for the transferee

company, which would result in maximizing overall shareholder value,

and will improve the competitive position of the combined entity. It is

further claimed that the proposed Scheme will provide benefit of

operational synergies to the combined entity in areas such as

procurement of trading stock, sourcing of material, development of

contractor rates, development planning and marketing, which can be put

to the best advantage of the stakeholders.

9. 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 in the following ratio:

"27.4 equity shares of Rs.10/- each of the transferee company, credited as fully paid up, for every 01 equity share of Rs.10/- each held in the transferor company."

10. 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.

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

in their separate meetings held on 5th 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.

12. The petitioner companies had earlier filed CA (M) No. 98/2015

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 28th August, 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 and transferee companies, to

consider and, if thought fit, approve, with or without modification, the

proposed Scheme of Amalgamation.

13. The petitioner companies have thereafter filed the present petition

seeking sanction of the Scheme of Amalgamation. Vide order dated 18th

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 '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 30th January,

2016. Copies of the newspaper clippings containing the publications have

been filed along with the said affidavit.

14. 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 10th March, 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 company

do not appear to have been conducted in a manner prejudicial to the

interest of its members, creditors or public interest, as per second proviso

of Section 394(1) of the Companies Act, 1956.

15. 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 10th March, 2016 stating that the ROC in

his report has not made any adverse comments to the Scheme of

Amalgamation and that the Regional Director has no objection to the

proposed Scheme of Amalgamation. However, in para 9 of his report,

while referring to clause 13.5 of the Scheme with regard to the fact that

the transferee company can retain and use the name of the transferor

company, he has submitted that as the transferor company will be

dissolved after sanction of the Scheme of Amalgamation, the name

cannot be retained by the transferee company in terms of clause 13.5 of

the Scheme and the transferee company has to make an application for

name availability after sanction of the Scheme and any such application

shall be regulated as per the provisions of the Companies Act, 2013 and

the Companies (Incorporation) Rules, 2014.

16. In response to the aforesaid observation, the petitioner companies

in the affidavit dated 6th April, 2016 of Mr. Virendra Kumar Bhatia,

Director of the transferee company have submitted that the transferee

company will not claim to retain and use the name of the transferor

company as a result of completion of amalgamation proceedings.

Further, if the transferee company requires to obtain the name of the

transferor company after completion of the amalgamation proceedings,

then it will make an application for name availability and the same will be

regulated as per the provisions of the Companies Act, 2013 and the

Companies (Incorporation) Rules, 2014. In view of the above, the

observation of the Regional Director stands satisfied.

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

from any other party. The petitioner companies, in the affidavit dated 10th

March, 2016 of Mr. Santosh Kumar, counsel for 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 30th January, 2016.

18. 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, 2014, the transferor

company shall stand dissolved without undergoing the process of winding

up.

19. 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 27.04.2016, the petitioners shall deposit a sum of Rs.1,00,000/- by

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

20. The petition is allowed in the above terms.

Dasti.

SUDERSHAN KUMAR MISRA, J.

May 16, 2016