Bankey Bihari Marketing Private ... vs ...
2016 Latest Caselaw 3629 Del

                   IN THE HIGH COURT OF DELHI
                  COMPANY PETITION NO. 775/2015

                                             Reserved on 3rd May, 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:

Bankey Bihari Marketing Private Limited
                                   Petitioner/Transferor Company No. 1

Suridhi Retail Private Limited
                                     Petitioner/Transferor Company No. 2
      WITH

Suridhi Commercial Infra Private Limited
                                           Petitioner/Transferee Company

                                 Through Mr. Rajeev K. Goel, 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(2) & 394 of

the Companies Act, 1956 by the petitioner companies seeking sanction

of the Scheme of Amalgamation of Bankey Bihari Marketing Private

Limited (hereinafter referred to as the transferor company no. 1) and

Suridhi Retail Private Limited (hereinafter referred to as the transferor

company no. 2) with Suridhi Commercial Infra 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 5th November, 2001 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

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

the Companies Act, 1956 on 19th November, 2012 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

5. The transferee company was incorporated under the Companies

Act, 2013 on 5th March, 2015 with the Registrar of Companies, NCT of

Delhi & Haryana at New Delhi.

6. The present authorized share capital of the transferor company

no.1 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.

7. The present authorized share capital of the transferor company

no.2 is Rs.1,93,00,000/- divided into 19,30,000 equity shares of Rs.10/-

each. The issued and subscribed capital of the company is

Rs.97,43,210/- divided into 9,74,321 equity shares of Rs.10/- each

including 2,36,588 equity shares which were forfeited. The paid-up share

capital of the company is Rs.85,56,563 divided into 7,36,834 equity

shares of Rs.10/- each, fully paid up, aggregating to Rs.73,68,340/-; 315

equity shares of Rs.10/- each, partly paid up to the extent of Rs.7.50/-

per share, aggregating to Rs.2363/-; 584 equity shares of Rs.10/- each,

partly paid up to the extent of Rs.5/- per share, aggregating to Rs.2,920/-;

and Rs.11,82,940/- being amount paid on 2,36,588 equity shares which

were forfeited due to non-payment of call money.

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

Rs.10,00,000/- divided into 1,00,000 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.

9. 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) 148/2015, earlier filed by the petitioners.

The audited balance sheets, as on 31st March, 2015, of the transferor

and transferee companies, along with the report of the auditors, had also

been filed.

10. 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 affidavits. 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, pooling of their resources and consolidation of these

companies. 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.

11. 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:-

"785 equity shares of Rs.10/- each of the transferee company, credited as fully paid up, for every 200 equity shares of Rs.10/- held in the transferor company no. 1."

"96 equity shares of Rs.10/- each of the transferee company, credited as fully or partly paid up, for every 100 equity shares of Rs.10/- held in the transferor company no. 2. In case of partly paid shares in the transferor company no. 2, the

transferee company will issue equity shares credited as partly paid up to the same extent as in the transferor company no. 2 as on the record date."

12. 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.

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

in their separate meetings held on 11th July, 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.

14. The petitioner companies had earlier filed CA (M) No. 148/2015

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 and transferee companies, there

being no secured creditors of the petitioner companies, to consider and, if

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

of Amalgamation.

15. The petitioner companies have thereafter filed the present petition

seeking sanction of the Scheme of Amalgamation. Vide order dated 13th

October, 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

'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 24th October,

2015. Copies of the newspaper clippings containing the publications have

been filed along with the said affidavit.

16. 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

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.

17. 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 21st March, 2016 stating that the

Registrar of Companies has not made any adverse comments to the

proposed Scheme and that the Regional Director have no objection to

the proposed Scheme of Amalgamation.

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

from any other party. The petitioner companies, in the affidavit dated 15th

March, 2016 of Mr. Bhupesh Kumar Dhingra, director of the transferee

company have submitted that neither the petitioner companies nor their

counsel have received any objection pursuant to the citations published

in the newspapers on 24th October, 2015.

19. 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 & 2 shall stand dissolved without undergoing the process

of winding up.

20. 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 03.05.2016, the petitioners shall deposit a sum of Rs.1,00,000/- by

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

21. The petition is allowed in the above terms.

Dasti.

SUDERSHAN KUMAR MISRA, J.

May 16, 2016