Bright Lifecare Private Limited vs ..
2016 Latest Caselaw 3632 Del

                   IN THE HIGH COURT OF DELHI
                  COMPANY PETITION NO. 705/2015

                                             Reserved on 29th 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) and 394 read
with Sections 100 to 103 of the Companies
Act, 1956 read with Rules 67 to 87 of the
Companies (Court) Rules, 1959

Scheme of Arrangement between:

Bright Lifecare Private Limited
                                           Petitioner/Demerged Company
      AND

1MG Technologies Private Limited
                                            Petitioner/Resulting Company

                                  Through Mr. Gaurav Varma, Advocate
                                  for the petitioners
                                  Ms.     Aparna     Mudiam, Assistant
                                  Registrar of Companies for the
                                  Regional Director

SUDERSHAN KUMAR MISRA, J.

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

read with Sections 100 to 103 of the Companies Act, 1956 read with

Rules 67 to 87 of the Companies (Court) Rules, 1959 by the petitioner

companies seeking sanction of the Scheme of Arrangement between

Bright Lifecare Private Limited (hereinafter referred to as the demerged

company) and 1MG Technologies Private Limited (hereinafter referred to

as the resulting company).

2. The registered offices of the demerged and resulting companies

are situated at New Delhi, within the jurisdiction of this Court.

3. The demerged company was incorporated under the Companies

Act, 1956 on 30th April, 2011 with the Registrar of Companies, NCT of

Delhi & Haryana at New Delhi.

4. The resulting company was incorporated under the Companies

Act, 2013 on 20th April, 2015 with the Registrar of Companies, NCT of

Delhi & Haryana at New Delhi.

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

Rs.2,07,07,14,591/- divided into 2,99,050 equity shares of Rs.1/- each

aggregating to Rs.2,99,050/-; 200 series A equity shares of Rs.1/- each

aggregating to Rs.200/-; 750 series B equity shares of Rs.1/- each

aggregating to Rs.750/-; 84,706 series A compulsorily convertible

preference shares of Rs.1/- each aggregating to Rs.84,706/-;

36,51,71,360 series B compulsorily convertible preference shares of

Rs.1/- each aggregating to Rs.36,51,71,360/-; 1,79,344 series C

compulsorily convertible preference shares of Rs.3997.90/- each

aggregating to Rs.71,69,99,377.60/-; 1,13,140 series D compulsorily

convertible preference shares of Rs.7664.4857/- each aggregating to

Rs.86,71,59,912.10/- and 15,787 series D1 compulsorily convertible

preference shares of Rs.7664.4857/- each aggregating to

Rs.12,09,99,235.75/-. The issued, subscribed and paid up capital of the

company is Rs.2,07,05,09,051.99/- divided into 1,16,524 equity shares of

Rs.1/- each aggregating to Rs.1,16,524/-; 200 series A equity shares of

Rs.1/- each aggregating to Rs.200/-; 750 series B equity shares of Rs.1/-

each aggregating to Rs.750/-; 84,706 series A compulsorily convertible

preference shares of Rs.1/- each aggregating to Rs.84,706/-;

36,51,71,340 series B compulsorily convertible preference shares of

Rs.1/- each aggregating to Rs.36,51,71,340/-; 1,79,344 series C

compulsorily convertible preference shares of Rs.3997.90/- each

aggregating to Rs.71,69,99,377.60/-; 1,13,137 series D compulsorily

convertible preference shares of Rs.7664.4857/- each aggregating to

Rs.86,71,36,918.64/- and 15,787 series D1 compulsorily convertible

preference shares of Rs.7664.4857/- each aggregating to

Rs.12,09,99,235.75/-.

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

Rs.30,01,00,000/- divided into 30,01,00,000 equity shares of Rs.1/- each.

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

Rs.30,01,00,000/- divided into 30,01,00,000 equity shares of Rs.1/- each.

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

demerged and resulting companies have been filed on record with the

joint application, being CA(M) 136/2015, earlier filed by the petitioners..

The audited balance sheet, as on 31st March, 2014, of the demerged

company, along with the report of the auditors, and the unaudited

provisional balance sheet, as on 31st May, 2015, of the resulting

company had also been filed.

8. A copy of the Scheme of Arrangement 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 Scheme of Arrangement, inter-alia, provides for

merger of the HealthKartPlus Business of the demerged company into

the resulting company. It is further submitted that the present demerger is

being undertaken to segregate the HealthKartPlus Business of the

demerged company from its Bright Business since the two segments

have distinct nature of operations and nature of offering and risks and

rewards for both the segments are different. It is claimed that the

Scheme is expected to have beneficial results for the shareholders and

the petitioner companies.

9. So far as the share exchange ratio is concerned, the Scheme

provides that upon coming into effect of this Scheme, the resulting

company shall issue and allot shares to the shareholders of the

demerged company in the following ratio:

"69 fully paid up equity shares of Rs.1/- each of the resulting company for every 664 equity shares of Rs.1/- each fully paid up held in the demerged company."

"69 fully paid up series A equity shares of Rs.1/- each of the resulting company for every 664 series A equity shares of Rs.1/- each fully paid up held in the demerged company."

"69 fully paid up series B equity shares of Rs.1/- each of the resulting company for every 664 series B equity shares of Rs.1/- each fully paid up held in the demerged company."

"69 fully paid up series A compulsorily convertible preference shares Rs.1/- each of the resulting company for every 664 series A compulsorily convertible preference shares of Rs.1/- each fully paid up held in the demerged company."

"69 fully paid up series B compulsorily convertible preference shares Rs.1/- each of the resulting company for every 664 series B compulsorily convertible preference shares of Rs.1/- each fully paid up held in the demerged company."

"69 fully paid up series C compulsorily convertible preference shares Rs.1/- each of the resulting company for every 664 series C compulsorily convertible preference shares of Rs.3997.90 each fully paid up held in the demerged company."

"69 fully paid up series D compulsorily convertible preference shares Rs.1/- each of the resulting company for every 664 series D compulsorily convertible preference shares of Rs.7664.4857 each fully paid up held in the demerged company."

"69 fully paid up series D1 compulsorily convertible preference shares Rs.1/- each of the resulting company for every 664 series D1 compulsorily convertible preference shares of Rs.7664.4857 each fully paid up held in the demerged 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 demerged and resulting companies

in their separate meetings held on 17th June, 2015 have unanimously

approved the proposed Scheme of Arrangement. Copies of the

Resolutions passed at the meetings of the Board of Directors of the

demerged and resulting companies have been placed on record.

12. The petitioner companies had earlier filed CA (M) No. 136/2015

seeking directions of this court to dispense with the requirement of

convening the meetings of their equity shareholders, preference

shareholders, secured and unsecured creditors, which are statutorily

required for sanction of the Scheme of Arrangement. 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, preference shareholders, secured and unsecured creditors

of the demerged company and equity shareholders of the resulting

company, there being no secured or unsecured creditor of the resulting

company, to consider and, if thought fit, approve, with or without

modification, the proposed Scheme of Arrangement.

13. The petitioner companies have thereafter filed the present petition

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

September, 2015, notice in the petition was directed to be issued to the

Official Liquidator and the Regional Director, Northern Region. Citations

were also directed to be published in 'Financial Express' (English) and

'Jansatta' (Hindi) editions. Thereafter, vide order dated 2nd November,

2015 passed in CA No. 3178/2015, it was directed that notice need not

be issued to the Official Liquidator in this matter. Affidavit of services has

been filed by the petitioners showing compliance regarding service on the

Regional Director, Northern Region, and also regarding publication of

citations in the aforesaid newspapers on 1st November, 2015. Copies of

the newspaper clippings containing the publications have been filed

along with the said affidavit.

14. 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 15th February, 2016 stating that he had

no objection to the proposed Scheme of Arrangement.

15. No objection has been received to the Scheme of Arrangement

from any other party. The petitioner companies, in the affidavit dated 12th

February, 2016 of Mr. Satwinder Singh, counsel for the petitioner

companies, have submitted that neither the petitioner companies nor

their advocates have been received pursuant to the citations published in

the newspapers on 1st November, 2015.

16. Considering the approval accorded by the shareholders and

creditors of the petitioner companies to the proposed Scheme of

Arrangement and the affidavit filed by the Regional Director, Northern

Region, not raising any objection to the proposed Scheme of

Arrangement, there appears to be no impediment to the grant of sanction

to the Scheme of Arrangement. Consequently, sanction is hereby

granted to the Scheme of Arrangement under Sections 391 and 394 read

with Sections 100 to 103 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 Arrangement, i.e. 1st May, 2015, the HealthKartPlus

Business of the demerged company shall stand merged in the resulting

company.

17. The representative of the Regional Director 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 29.04.2016, the petitioners shall deposit a sum of Rs.1,00,000/- by

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

18. The petition is allowed in the above terms.

Dasti.

SUDERSHAN KUMAR MISRA, J.

May 16, 2016