Delhi High Court
Philco Overseas Limited vs ... on 30 May, 2016
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 451/2015
Reserved on 26th April, 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 to 394 of the
Companies Act, 1956
Scheme of Amalgamation of:
Philco Overseas Limited
Petitioner/Transferor Company
WITH
Superfreeze India Limited
Petitioner/Transferee Company
Through Mr. Tariq Muneer and Mr.A.
Singh, Advocates for the petitioners
Ms. Aparna Mudiam, Asstt. Registrar
of Companies for the Regional Director
Mr. Ashish Makhija, Advocate for the
Official Liquidator
SUDERSHAN KUMAR MISRA, J.
1. This joint petition has been filed under Sections 391 to 394 of the
Companies Act, 1956 by the petitioner companies seeking sanction of
the Scheme of Amalgamation of Philco Overseas Limited (hereinafter
referred to as the transferor company) with Superfreeze India 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 on 25th October, 1994 with the Registrar of Companies,
NCT of Delhi & Haryana at New Delhi.
4. The transferee company was incorporated under the Companies
Act, 1956 on 24th July, 1996 with the Registrar of Companies, NCT of
Delhi & Haryana at New Delhi.
5. The present authorized share capital of the transferor company is
Rs.50,00,000/- divided into 5,00,000 equity shares of Rs.10/- each. The
issued, subscribed and paid-up share capital of the company is
Rs.14,50,000/- divided into 1,45,000 equity shares of Rs.10/- each fully
paid-up.
6. The present authorized share capital of the transferee company is
Rs.1,75,00,000/- divided into 17,50,000 equity shares of Rs.10/- each.
The issued, subscribed and paid-up share capital of the company is
Rs.1,68,36,000/- divided into 16,83,600 equity shares of Rs.10/- each
fully paid-up.
7. Copies of Memorandum and Articles of Association of the
transferor and transferee companies have been filed on record with the
joint application being CA(M) 41/2015 earlier filed by the petitioners. The
audited balance sheets, as on 31st March, 2014, of the transferor
company, along with the report of the auditors, and the audited balance
sheet, as on 31st March, 2014, of the transferee company 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 claimed
by the petitioners that the proposed Amalgamation would result in
consolidation and simplification of the group structure; reducing
operational and compliance costs, achieving operational and
management efficiency; and synergies arising out of consolidation of
business, such as, enhancement of net worth of the combined business
to capitalize on future growth potential, optimal utilization of resources.
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 companies as under:-
"10,97,000 fully paid up equity shares of Rs.10/- each in the
share capital of the transferee company in the proportion of
the number of equity shares held by the shareholders in the
transferor company."
The petitioners have also placed on record the affidavit dated 17th
March, 2016 of Mr. Sanjeev Maini, director of the transferor company
showing the ratio in which the shareholders of the transferor company
will get shares in the transferee company, post amalgamation. Further,
they have also placed on record the individual affidavit of each
shareholder of the transferee company acknowledging the share
exchange ratio.
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 10th March, 2014 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. 41/2015
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 8th May, 2015 this court
allowed the application and dispensed with the requirement of convening
and holding the meetings of the equity shareholders of the transferor
company and equity shareholders and unsecured creditors of the
transferee company, there being no secured or unsecured creditors of
the transferor company and no secured creditor of the transferee
company, 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 16th
July, 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. Affidavits have been filed by the petitioners
showing compliance publication of citations in the aforesaid newspapers
on 8th October, 2015. 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 9th December,
2015 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 14th December, 2015. Relying on Clause
8.1 of the Scheme, he has stated that, upon sanction of the Scheme of
Arrangement, all the employees of the transferor company shall become
the employees of the transferee company without any break or
interruption in their services. He has further submitted that in Clause
13.1.1 of the Scheme, it has been stated that the transferee company
shall follow the method of accounting as prescribed for the pooling of
interest method under Accounting Standard-14 issued as notified under
the Companies (Accounting Standard) Rules, 2006. He further submitted
that in Clause 15.1 of the Scheme, it has been stated that upon this
scheme becoming effective, the transferor company shall stand dissolved
without the process of winding up.
16. No objection has been received to the Scheme of Amalgamation
from any other party. The petitioner companies, in the affidavit dated 19th
December, 2015 of Mr. Sanjeev Mani, director 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 8th October, 2015.
17. Considering the approval accorded by the equity shareholders of
the petitioner companies, there being no 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.
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 26.04.2016, 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 30, 2016
