Delhi High Court
Bhabani Pigments Private Limited vs ... on 30 May, 2016
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 385/2015
Reserved on 4th May, 2016
Date of pronouncement: 30th 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 of the
Companies Act, 1956
Scheme of Arrangement between:
Bhabani Pigments Private Limited
Petitioner/Demerged Company
AND
Bhabani Realty Private Limited
Petitioner/Resulting Company
Through Mr. Ashish Midha, 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(1) to 394 of
the Companies Act, 1956 by the petitioner companies seeking sanction
of the Scheme of Arrangement between Bhabani Pigments Private
Limited (hereinafter referred to as the demerged company) and Bhabani
Realty 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 4th October, 1993 with the Registrar of Companies, NCT of
Delhi & Haryana at New Delhi.
4. The resulting company was incorporated under the Companies
Act, 2013 on 19th November, 2014 with the Registrar of Companies, NCT
of Delhi & Haryana at New Delhi.
5. The present authorized share capital of the demerged company 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.1,42,50,000/- divided into 14,25,000 equity shares of Rs.10/- each.
6. The present authorized share capital of the resulting company is
Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each. The
present 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. 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) 75/2015, earlier filed by the petitioners.
The audited balance sheet, as on 31st March, 2014, of the demerged
company had also been filed. It has been submitted by the petitioners
that since the resulting company has been incorporated only recently and
has not started any business operations, no accounts has been prepared
for the resulting company.
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 affidavit. It is submitted by
the petitioners that the Scheme, inter alia, provides for transfer of assets
and liabilities of the demerged company as described in Annexure-I of
the amended Scheme of Arrangement to the resulting company. It is
claimed that the proposed arrangement will enable the demerged
company to concentrate on growing, developing and enhancing
efficiencies of its different segments, organic and inorganic pigments and
enable the resulting company to concentrate on growing, developing and
enhancing efficiencies of its real estate business. It is further claimed that
the proposed arrangement will strengthen, consolidate and stabilize the
business of these companies and will facilitate further expansion and
growth of their business.
9. So far as the share exchange ratio is concerned, the amended
Scheme of Arrangement provides that, upon coming into effect of this
Scheme, the resulting company shall issue and allot equity shares to the
shareholders of the demerged company in the following ratio:
"1,29,08,204 equity shares of Rs.10/- each fully paid up of
the resulting company shall be allotted to the demerged
company equal to an amount of book value of assets
transferred by 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 24th November, 2014 have
unanimously approved the proposed Scheme of Arrangement.
Thereafter, the Board of Directors of the demerged and resulting
companies in their separate meetings held on 7th November, 2015
approved certain amendment in the earlier Scheme and approved the
amended 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. 75/2015
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 Arrangement. Vide order dated 25th May, 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 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 1st
July, 2015, notice in the petition was directed to be issued to the
Regional Director, Northern Region. 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 2nd November,
2015. Copies of the newspaper clippings containing the publications have
been filed along with the said affidavit.
14. Thereafter, vide CA No. 3590/2015, petitioners sought to place on
record the amended Scheme of Arrangement. It has been submitted by
the petitioners that the Board of Directors of the petitioner companies and
their shareholders have considered not to demerge the office building
and commercial building of the demerged company at Okhla Industrial
Estate and Chemtex House, Hiranandani Garden, Powai Mumbai
respectively to the resulting company and as a consequence sought to
amend the earlier Scheme of Arrangement by deleting those properties.
It is further submitted that the said amendment is duly approved by the
Board of Directors of the petitioner companies as well as by their
shareholders. Copies of the board resolutions approving the amended
Scheme along with the consents of the shareholders have been placed
on record. The said application was allowed vide order dated 4th May,
2016 and the amended Scheme of Arrangement along with the relevant
Board Resolutions is taken on record.
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 2nd May, 2016. Although the Regional
Director has not raised any objection to the proposed Scheme, but in
para 8 of his report he has stated that the Board of Directors of the
petitioner companies have approved the earlier Scheme and the
amended Scheme in their meetings held on 24.11.2014 and 07.11.2015
respectively. Accordingly, in terms of provisions of Section 117(3) read
with 179(3) of the Companies Act, 2013, the companies are required to
file such resolution (e-form MGT-14) with the ROC within 30 days of
passing the resolutions whereas none of the companies have filed the
said resolutions so far thereby prima facie violated the provisions of
Section 117(3) of the Companies Act, 2013.
16. In response to the aforesaid observation of the Regional Director,
learned counsel for the petitioners have submitted that necessary e-form
MGT-14 has been filed on the website of the Ministry of Corporate Affairs
on 04.05.2016 and a copy of the same has also been furnished to the
Assistant Registrar of Companies in the Court, who states that in view of
the same, she does not have any further objections. In view of the above,
the observation made by the Regional Director stands satisfied.
17. No objection has been received to the Scheme of Arrangement
from any other party. The petitioner companies, in the affidavit dated 16th
November, 2015 of Mr. Ashish Middha, counsel of 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 2nd November, 2015.
18. Considering the approval accorded by the equity 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 amended Scheme of
Arrangement, there appears to be no impediment to the grant of sanction
to the amended Scheme of Arrangement. Consequently, sanction is
hereby granted to the amended Scheme of Arrangement annexed with
CA 3590/2015 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 demerged undertaking of the demerged company shall
stand merged in the resulting company.
19. The Assistant Registrar of Companies appearing for the Regional
Director prays that costs of at least Rs.50,000/- 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 04.05.2016, the petitioners
shall deposit a sum of Rs.50,000/- 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 30, 2016
