Sundeep Import Export Private ... vs ...
2016 Latest Caselaw 4123 Del

                   IN THE HIGH COURT OF DELHI
                  COMPANY PETITION NO. 783/2015

                                          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:

Sundeep Import Export Private Limited
                                          Petitioner/Transferor Company
      WITH
Newgen Software Technologies Limited
                                  Non-Petitioner/Transferee Company

                               Through Mr. Saurabh Kalia, Advocate
                               for the petitioner
                               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 petition has been filed under Sections 391 to 394 of the

Companies Act, 1956 by the petitioner/transferor company seeking

sanction of the Scheme of Amalgamation of Sundeep Import Export

Private Limited (hereinafter referred to as the petitioner/transferor

company) with Newgen Software Technologies Limited (hereinafter

referred to as the transferee company).

2. The registered offices of the petitioner/transferor company and the

transferee company are situated at New Delhi, within the jurisdiction of

this Court.

3. The petitioner/transferor company was originally incorporated

under the Companies Act, 1956 on 26th March, 1972 with the Registrar of

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

style of Sundeep Import Export Private Limited. The word 'Private' was

deleted from the name of the company w.e.f. 31.03.2000. The company

changed its name to Sundeep Import Export Private Limited and

obtained the fresh certificate of incorporation on 24th March, 2015.

4. The present authorized share capital of the petitioner/transferor

company is Rs.5,00,000/- divided into 5,000 equity shares of Rs.100/-

each aggregating. The present issued, subscribed and paid-up share

capital of the company is Rs.5,00,000/- divided into 5,000 equity shares

of Rs.100/- each aggregating.

5. A copy of the Memorandum and Articles of Association of the

petitioner/transferor company has been filed on record with the

application being CA(M) 149/2015 earlier filed by the petitioner. The

audited balance sheet, as on 31st March, 2015, of petitioner/transferor

company, along with the report of the auditors, had also been filed.

6. 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 petitioner that the proposed amalgamation will reduce managerial

overlap, reduce administrative cost and strengthened leadership in the

industry, in terms of asset base and revenue. It is further claimed that the

proposed amalgamation will improve organizational capabilities and

leadership, arising from pooling of assets, human capital and technical

resources to compete successfully in an increasingly competitive

industry.

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

provides that since the transferor company is a wholly owned subsidiary

of the transferee company, no consideration shall be payable by the

transferee company pursuant to the amalgamation of the transferor

company with the transferee company, and accordingly the entire

investment in the transferor company held by the transferee company

would stand cancelled.

8. 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/transferor company and the transferee company.

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

in their separate meetings held on 17th 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.

10. The petitioner/transferor company had earlier filed CA (M) No.

149/2015 seeking directions of this court to dispense with the

requirement of convening the meetings of its 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 petitioner/transferor

company, there being no secured creditor of the transferor company, to

consider and, if thought fit, approve, with or without modification, the

proposed Scheme of Amalgamation. Vide the said order, this Court also

dispensed with the requirement of filing a separate petition by the

transferee company.

11. The petitioner/transferor company has thereafter filed the present

petition seeking sanction of the Scheme of Amalgamation. Vide order

dated 15th 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 (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 19th November,

2015. Copies of the newspaper clippings containing the publications have

been filed along with the said affidavit.

12. 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 22nd January,

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.

13. 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 5th February, 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.

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

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

April, 2016 of Mr. Aman, authorized signatory of the transferee company

has submitted that neither the petitioner companies nor their counsel

have received any objection pursuant to the citations published in the

newspapers on 19th November, 2015.

15. Considering the approval accorded by the equity shareholders and

creditors of the petitioner company to the proposed Scheme of

Amalgamation and the affidavits filed by the Regional Director, Northern

Region and the Official Liquidator not having 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.

16. Learned counsel for the Official Liquidator prays that costs of at

least Rs.50,000/- should be paid by the petitioner 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.50,000/- by way of

costs with the Common Pool Fund of the Official Liquidator.

17. The petition is allowed in the above terms.

Dasti.

SUDERSHAN KUMAR MISRA, J.

May 30, 2016