Delhi High Court
Spice Innovative Technologies ... vs ... on 2 September, 2016
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 211/2016
Reserved on 10th 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 Section 391 to 394 of the
Companies Act, 1956
Scheme of Amalgamation of:
Spice Innovative Technologies Private Limited
Petitioner/Transferor Company
WITH
Smart Global Corporate Holding Private Limited
Petitioner/Transferee Company
Through Mr. Harshit Aggarwal with
Mr.Gursat Singh, 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 Spice Innovative Technologies Private
Limited (hereinafter referred to as the transferor company) with Smart
Global Corporate Holding 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 13th May, 2008 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of Excellent Technologies Private Limited. The company changed
its name to Spice Innovative Technologies Private Limited and obtained
the fresh certificate of incorporation on 2nd September, 2008.
4. The transferee company was originally incorporated under the
Companies Act, 1956 on 18th June, 2001 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of Indian Televentures Private Limited. The company changed its
name to Spice Global Investments Private Limited and obtained the fresh
certificate of incorporation on 16th July, 2009. The company again
changed its name to Smart Global Corporate Holding Private Limited and
obtained the fresh certificate of incorporation on 8th August, 2014.
5. The present authorized share capital of the transferor company is
Rs.3,01,00,00,000/- divided into 30,10,00,000 equity shares of Rs.10/-
each. The issued, subscribed and paid-up share capital of the company
is Rs.3,00,01,00,000/- divided into 30,00,10,000 equity shares of Rs.10/-
each.
6. The present authorized share capital of the transferee company is
Rs.2,12,00,00,000/- divided into 21,20,00,000 equity shares of Rs.10/-
each. The issued, subscribed and paid-up share capital of the company
is Rs.3,94,11,960/- divided into 39,41,196 equity shares of Rs.10/- each.
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) 191/2015, earlier filed by the petitioners.
The audited balance sheets, as on 30th June, 2015, of the transferor and
transferee companies 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 greater
efficiency in resource management, cost savings resulting from
rationalization, standardization and simplification of business processes.
It is further claimed that the proposed amalgamation would result in
improved organizational capability arising from pooling of financial,
managerial and technical resources and will also maximize the overall
shareholders value by strengthening its core competencies.
9. So far as the share exchange ratio is concerned, the Scheme
provides that there will be no issue and allotment of shares by the
transferee company in consideration of amalgamation of the transferor
company with the transferee company as the entire share capital of the
transferor company is held by the transferee company either in its own
name or through its nominee(s).
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 company and the
transferee company in their separate meetings held on 1st December,
2015 and 2nd December, 2015 respectively 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. 191/2015
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 18th February, 2016, 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 companies, there being no secured
creditor of the petitioner 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
March, 2016, 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
"Jansatta" (Hindi) Delhi 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 9th April, 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 4th August, 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. Narender
Kumar Bhola, Regional Director, Northern Region, Ministry of Corporate
Affairs has filed his report dated 5th August, 2016 stated that he had no
objection to the Scheme subject to the findings made by the ROC in his
Technical Scrutiny report as stated in para 8 of his report. The Regional
Director in para 8 of his report has stated that Technical Scrutiny under
Section 234(1) of the Companies Act, 1956 of the transferor company
was conducted on 26.06.2013 and the report of the same is under
process.
16. In response to the aforesaid observation, the petitioner companies
in the affidavit dated 8th August, 2016 of Ms. Jyoti Manchanda, Director of
the petitioner companies, have submitted that pursuant to sanction of the
Scheme, the transferor company would amalgamated with the transferee
company. Further, if there is any violation of any provisions of Companies
Act, 2013 or any other applicable laws by the transferor company, then
the same would be continued and enforced by or against the transferee
company in terms of Section 4 of the Scheme of Amalgamation. Since
the transferee company is not the subject matter of dissolution and will
remain in existence even after the sanction of the Scheme, therefore, in
case of any adverse finding emanates from the Technical Scrutiny under
Section 234(1) of the Companies Act, 1956 against the transferor
company, the ROC/other statutory authorities would be at liberty to take
appropriate action, as permissible in law, against the transferee
company.
17. No objection has been received to the Scheme of Amalgamation
from any other party. The petitioner companies, in the affidavit dated 8th
August, 2016 of Ms. Jyoti Manchanda, 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 9th April, 2016.
18. 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 July, 2015, the transferor
company shall stand dissolved without undergoing the process of winding
up.
19. Learned counsel for the Official Liquidator prays that costs of at
least Rs.2,00,000/- 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 10.08.2016, the petitioners shall deposit a sum of Rs.2,00,000/- by
way of costs with Delhi High Court Bar Association Lawyers Social
Security and Welfare Fund, New Delhi.
20. The petition is allowed in the above terms.
Dasti.
SUDERSHAN KUMAR MISRA, J.
September 02, 2016
