Delhi High Court
Supertech Precast Technologies ... vs ... on 2 September, 2016
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 212/2016
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 Sections 391 to 394 of the
Companies Act, 1956
Scheme of Amalgamation of:
Supertech Precast Technologies Private Limited
Petitioner/Transferor Company
WITH
Supertech Township Project Limited
Non-Petitioner/Transferee Company
Through Mr. Saurabh Kalia, Mr.Hemant
Sharma, Mr. Palash Aggarwal and
Mr.Gursat, Advocates for the petitioner
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 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 Supertech Precast
Technologies Private Limited (hereinafter referred to as the
petitioner/transferor company) with Supertech Township Project 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 November, 2010 with the
Registrar of Companies, NCT of Delhi & Haryana at New Delhi under the
name and style of Supertech NorthEye Infra Private Limited. The
company changed its name to Supertech Precast Technologies Private
Limited and obtained the fresh certificate of incorporation on 12th
January, 2011.
4. The present authorized share capital of the petitioner/transferor
company is Rs.20,00,00,000/- divided into 2,00,00,000 equity shares of
Rs.10/- each. The present issued, subscribed and paid-up share capital
of the company is Rs.10,01,00,000/- divided into 1,00,10,000 equity
shares of Rs.10/- each.
5. A copy of the Memorandum and Articles of Association of the
petitioner/transferor company has been filed on record. The audited
balance sheet, as on 31st March, 2015, of petitioner/transferor company,
along with the report of the auditors, has 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 is expected to result in
integration and synergy of operations, economies of scale, reduction in
overheads, administrative, managerial and other expenditure,
organizational efficiency and optimal utilization of resources. It is further
claimed that the amalgamation will also consolidate the managerial
expertise of the two companies thereby giving additional strength to the
operations and management of the transferee company.
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 shares of the transferee company shall be
allotted in lieu or exchange of its holding in the transferor company and
the entire issued, subscribed and paid-up share capital of the transferor
company held by the transferee company shall stand cancelled.
8. It has been submitted by the petitioner that no proceedings under
Sections 235 to 251 of the Companies Act, 1956 and/or under Sections
206 to 229 of the Companies Act, 2013 are pending against the
petitioner/transferor company and the transferee company.
9. The Board of Directors of the petitioner/transferor company and
the transferee company in their separate meetings held on 28th
November, 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.
29/2016 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 and to dispense with the requirement of the
transferee company to approach this Court for seeking sanction of
Scheme of Amalgamation. Vide order dated 19th February, 2016, this
court allowed the application and dispensed with the requirement of
convening and holding the meetings of the equity shareholders, secured
and unsecured creditor of the petitioner/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 the transferee company to file a separate or joint
application for obtaining sanction to the Scheme.
11. The petitioner/transferor company has 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 petitioner 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 29th
April, 2016. 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 July, 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. Narender
Kumar Bhola, Regional Director, Northern Region, Ministry of Corporate
Affairs has filed his report dated 5th August, 2016 stating that he had no
objection to the proposed Scheme of Amalgamation subject to
compliance of Section 203 of the Companies Act, 2013. The Regional
Director in para 10 of his report has stated that the transferor and
transferee companies have not appointed the whole time Company
Secretary, thereby prima facie violated the provisions of Section 203 of
the Companies Act, 2013. He has further submitted that the transferor
company is a loss making company.
14. In response to the aforesaid observation, the petitioner/transferor
company in the affidavit dated 6th August, 2016 of Mr. Ram Kishor Arora,
Director of the transferor and transferee companies, has submitted that
the transferee company has appointed a whole time Company Secretary
as per Board Resolution dated 1st March, 2016 and also filed the
requisite form DIR-12 to ROC. A copy of the said form is also placed on
record. With regard to the transferor company, it is submitted that in
terms of the Scheme, the transferor company would amalgamated with
the transferee company. However, if there is any violation of any
provision of the Companies Act, 2013 or any other applicable law by the
transferor company, the same would be continued and enforced by or
against the transferee company, in terms of Clause 4 of the Scheme of
Amalgamation. In view thereof, the observation made by the Regional
Director stands satisfied.
15. No objection has been received to the Scheme of Amalgamation
from any other party. The petitioner company, in the affidavit dated 8th
August, 2016 of Mr. Ram Kishor Arora, Director of the transferor and
transferee company, has submitted that neither the petitioner company
nor its counsel have received any objection pursuant to the citations
published in the newspapers on 29th April, 2016.
16. 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 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, 2015, the transferor
company shall stand dissolved without undergoing the process of winding
up.
17. Learned counsel for the Official Liquidator prays that costs of at
least Rs.2,00,000/- 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 10.08.2016, the petitioner shall deposit a sum of Rs.2,00,000/- by
way of costs with the Delhi High Court Bar Association Lawyers Social
Security and Welfare Fund, New Delhi.
18. The petition is allowed in the above terms.
Dasti.
SUDERSHAN KUMAR MISRA, J.
September 02, 2016
