Delhi High Court
Puriflair India Private Limited vs ... on 2 September, 2016
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 950/2015
Reserved on 11th August, 2016
Date of pronouncement: 2nd September, 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:
Puriflair India Private Limited
Petitioner/Transferor Company
WITH
Delair India Private Limited
Petitioner/Transferee Company
Through Mr. Ashim Sood and
Ms.Nayantara Vohra, Advocates for the
petitioners
Ms. Aparna Mudiam, Asstt. 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 to 394 of the
Companies Act, 1956 by the petitioner companies seeking sanction of
the Scheme of Amalgamation of Puriflair India Private Limited
(hereinafter referred to as the transferor company) with Delair India
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 23rd May, 1997 with the Registrar of
Companies, Gujarat. Thereafter, the company shifted its registered office
from the State of Gujarat to Delhi and obtained a certificate in this regard
from the Registrar of Companies, NCT of Delhi & Haryana at New Delhi
on 11th July, 2014.
4. The transferee company was incorporated under the Companies
Act, 1956 on 14th December, 1988 with the Registrar of Companies, NCT
of Delhi & Haryana at New Delhi.
5. The present authorized share capital of the transferor company is
Rs.7,00,00,000/- divided into 70,00,000 equity shares of Rs.10/- each.
The issued, subscribed and paid-up share capital of the company is
Rs.6,59,06,650/- divided into 65,90,665 equity shares of Rs.10/- each.
6. The present authorized share capital of the transferee company is
Rs.50,00,000/- divided into 5,000 equity shares of Rs.1,000/- each. The
issued, subscribed and paid-up share capital of the company is
Rs.27,00,000/- divided into 2,700 equity shares of Rs.1,000/- each.
7. 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, of transferor and
transferee companies, along with the report of the auditors, have 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 create greater
synergies between the businesses of both the companies and would
enable them to have large asset base, access to better financial
resources as well as enable them to manage their business more
efficiently by effectively pooling the infrastructure and other resources of
each other. It is further claimed that the proposed amalgamation shall
result in enhancement of net worth of the combined business to
capitalize on future growth potential.
9. So far as the share exchange ratio is concerned, the Scheme
provides that, upon coming into effect of this Scheme, no consideration
shall be payable by the transferee company since the transferee
company (itself and through its nominee) is the only shareholder of the
transferor company, and no shares shall be allotted by the transferee
company either to itself or to any of its nominee shareholders holding
shares in the transferor company.
10. It has been submitted by the petitioners that no proceedings under
Sections 235 and 251 of the Companies Act, 1956 are pending against
the transferor and transferee companies.
11. The Board of Directors of the transferor and transferee companies
in their separate meetings held on 24th July, 2014 have unanimously
approved the proposed Scheme of Amalgamation. Copies of the
Resolutions passed at the meetings of the Board of Directors of
transferor and transferee companies have been placed on record.
12. The petitioner companies had earlier filed CA (M) No. 117/2015
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 28th September, 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 transferor and transferee 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 11th
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 'Indian Express' (English) and
'Dainik Bhaskar' (Hindi) editions. Affidavit of service has been filed by the
petitioners showing compliance regarding service on the Regional
Director, Northern Region and the Official Liquidator, and also regarding
publication of citations in the aforesaid newspapers on 2nd February,
2016. Copies of the newspaper clippings containing the publications have
been filed along with the affidavit of service.
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 29th 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 30th March, 2016 stating 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 28th
March, 2016 of Sh. Ashim Sood, counsel for the petitioner companies,
have submitted that they have not received any objection pursuant to the
citations published in the newspapers on 2nd February, 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 not raising 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 companies
states that the same is acceptable to him. As already directed vide order
dated 11.08.2016, the petitioners shall deposit a sum of Rs.1,00,000/- by
way of costs with Delhi High Court Bar Association Lawyers Social
Security and Welfare Fund, New Delhi.
19. The petition is allowed in the above terms.
Dasti.
SUDERSHAN KUMAR MISRA, J.
September 02, 2016
