Delhi High Court
Great Learning Management ... vs ... on 30 May, 2016
IN THE HIGH COURT OF DELHI
COMPANY APPLICATION (MAIN) NO. 48/2016
Reserved on 21st 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
Application under Sections 391 to 394 of the
Companies Act, 1956 read with Rules 6 & 9 of
the Companies (Court) Rules, 1959
Scheme of Amalgamation of:
Great Learning Management Private Limited
Applicant/Transferor Company
WITH
Beacon Higher Education Services Private Limited
Non-Applicant/Transferee Company
Through Mr. A.S. Gyani and Mr.Vikram
Shah, Advocates for the applicants
SUDERSHAN KUMAR MISRA, J.
1. This application has been filed under Sections 391 to 394 of the
Companies Act, 1956 read with Rules 6 & 9 of the Companies (Court)
Rules, 1959 by the applicant/transferor company seeking directions of
this court to dispense with the requirement of convening the meetings of
its equity shareholders, secured and unsecured creditors to consider and
approve, with or without modification, the proposed Scheme of
Amalgamation of Great Learning Management Private Limited
(hereinafter referred to as the transferor company) with Beacon Higher
Education Services Private Limited (hereinafter referred to as the
transferee company).
2. The registered offices of the applicant/transferor company and the
transferee company are situated at New Delhi, within the jurisdiction of
this Court.
3. The applicant/transferor company was incorporated under the
Companies Act, 1956 on 17th March, 2011 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
4. The present authorized share capital of the applicant/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.50,00,000/- divided into 5,00,000 equity shares of Rs.10/- each.
5. Copies of the Memorandum and Articles of Association of the
transferor and transferee companies have been filed on record. The
audited balance sheets, as on 31st March, 2015, along with the report of
the auditors, and the unaudited balance sheets, as on 22nd March, 2016
of the transferor and transferee companies have 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 application and the accompanying affidavit. It is submitted
by the applicant that the transferor company is a wholly owned subsidiary
of the transferee company. It is claimed that the proposed amalgamation
will enable better leverages of facilities, infrastructure and human
resources, better management control and running of the business by the
transferee company. It is further claimed that the proposed amalgamation
will result in reduction of similar overheads, administrative, managerial
and other expenditure, and bring about operational rationalization, and
organizational efficiency and synergy.
7. So far as the share exchange ratio is concerned, the Scheme
provides that since the entire share capital of the transferor company is
held by the transferee company, therefore upon the Scheme becoming
effective, neither any consideration shall be paid or shares shall be
issued/allotted by the transferee company to the shareholders of the
transferor company and the entire shares of the transferor company held
by the transferee company shall stand extinguished/cancelled.
8. It has been submitted by the applicant that no proceedings under
Sections 235 to 251 of the Companies Act, 1956 and applicable
provisions of the Companies Act, 2013 are pending against the applicant/
transferor company.
9. The Board of Directors of the applicant/transferor company and the
transferee company in their separate meetings held on 20th January,
2016 have unanimously approved the proposed Scheme of
Amalgamation. Copies of the Resolutions passed at the meetings of the
Board of Directors of the applicant/transferor company and the transferee
company have been placed on record.
10. The applicant/transferor company has 02 equity shareholders and
01 unsecured creditor. Both the equity shareholders and the sole
unsecured creditor have given their consents/no objections in writing to
the proposed Scheme of Amalgamation. Their consents/no objections
have been placed on record. They have been examined and found in
order. In view thereof, the requirement of convening the meetings of the
equity shareholders and unsecured creditor of the applicant/transferor
company to consider and, if thought fit, approve, with or without
modification, the proposed Scheme of Amalgamation is dispensed with.
There is no secured creditor of the applicant/transferor company, as on
22nd March, 2016.
11. The transferee company has 02 equity shareholders and 04
unsecured creditors, who have given their consents/no objections in
writing to the proposed Scheme of Amalgamation, which are placed on
record. There is no secured creditor of the transferee company. It has
been submitted by the applicant that the transferor company is a wholly
owned subsidiary of the transferee company and the rights of neither the
shareholders nor the creditors of the transferee company are being
affected since no shares are issued as consideration by the transferee
company, therefore, the transferee company is not required to file a
petition seeking sanction of the Scheme of Amalgamation. The applicant,
therefore, seeks dispensation of requirement of the transferee company
to approach this Court for sanction of Scheme of Amalgamation under
Sections 391-394 of the Companies Act, 1956. In support of his
submission, learned counsel placed reliance on the judgments of this
various High Courts, including this court, in Auto Tools India Pvt. Ltd.
(CA(M) 41/2012) Sharat Hardware Industries Pvt. Ltd. (1978), 48 Com.
Cas 23 (Delhi); Mahaamba Investments Ltd. & Anr. (2001) 105 Com.
Cas. 16 (Bom.); and Andhra Bank Housing Finance Ltd. (2004) 118
Com.Cas. 295 (AP), wherein it has been held that there is no
requirement to file a separate or joint application on behalf of the
transferee company for sanction of the Scheme.
12. I have carefully considered the aforesaid case law cited at the Bar,
wherein the transferee company, being the holding company, has been
granted exemption from taking out separate proceedings under Section
391(2) of the Companies Act, 1956. In view of this settled legal position
and considering the Scheme, the requirement of the transferee company
having to approach this Court under Section 391(2) of the Companies
Act, 1956 for sanction of the Scheme of Amalgamation is dispensed with.
13. The application stands allowed in the aforesaid terms.
Dasti
SUDERSHAN KUMAR MISRA, J.
May 30, 2016
