Green Box Sales Private Limited vs ...
2016 Latest Caselaw 3634 Del

                   IN THE HIGH COURT OF DELHI
                  COMPANY PETITION NO. 938/2015

                                           Reserved on 22nd 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(1) to 394 read
with Section 100 of the Companies Act, 1956

Scheme of Amalgamation of:

Green Box Sales Private Limited
                                          Petitioner/Transferor Company
      WITH

StyleGenie Digital Private Limited
                                          Petitioner/Transferee Company

                               Through Mr. Ashish Midha, Advocate
                               for the petitioners
                               Mr. Sanjay Bose, Dy. 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 Sections 391(1) to 394 read

with Section 100 of the Companies Act, 1956 by the petitioner companies

seeking sanction of the Scheme of Amalgamation of Green Box Sales

Private Limited (hereinafter referred to as the transferor company) with

StyleGenie Digital 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 originally incorporated under the

Companies Act, 1956 on 6th January, 2011 with the Registrar of

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

style of Smile Sales Private Limited. The company changed its name to

Green Box Sales Private Limited and obtained the fresh certificate of

incorporation on 7th June, 2012.

4. The transferee company was originally incorporated under the

Companies Act, 1956 on 3rd January, 2011 with the Registrar of

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

style of StyleGenie Digital Retail Private Limited. The company changed

its name to StyleGenie Digital Private Limited and obtained the fresh

certificate of incorporation on 20th May, 2011.

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

Rs.1,00,000/- divided into 10,000 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 authorized share capital of the transferee company is

Rs.40,00,000/- divided into 3,10,000 equity shares of Rs.10/- each

aggregating to Rs.31,00,000/- and 90,000 preference shares of Rs.10/-

each aggregating to Rs.9,00,000/-. The issued, subscribed and paid up

capital of the company is Rs.13,49,200/- divided into 1,34,920 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 with the

joint application, being CA(M) 169/2015, 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.

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 submitted by

the petitioners that the proposed scheme will result in formation of a

larger company enabling further growth and development of the

businesses of the said company thus enabling the said company to

obtain greater facilities possessed and enjoyed by one large company

compared to a small company for raising capital, securing and

conducting trade and business on favourable terms and other related

benefits. It is claimed that the proposed amalgamation will result in

reduction in overheads and other expenses, reduction in administrative

and procedural work, eliminate duplication of work, better and more

productive utilization of various resources and will enable the

undertakings concerned to affect internal economies and optimize

productivity.

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:-

"02 equity shares of Rs.10/- each of the transferee company, credited as fully paid up, for 10,000 equity shares 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 4th September, 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. 169/2015

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 16th 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 creditor of the petitioner 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 9th

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 'Business Standard' (English) and

(Hindi) editions. An affidavit has been filed by the petitioners showing

compliance regarding publication of citations in the aforesaid newspapers

on 8th 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 16th 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 8th April, 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.

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

from any other party. The petitioner companies, in the affidavit dated 7th

April, 2016 of Mr. Bijay Kumar Singh, 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 8th January, 2016.

17. 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

company shall stand dissolved without undergoing the process of winding

up.

18. 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 22.04.2016, the petitioners shall deposit a sum of Rs.1,00,000/- by

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

19. The petition is allowed in the above terms.

Dasti.

SUDERSHAN KUMAR MISRA, J.

May 16, 2016