Delhi High Court
Ideal Knowledge Park Private ... vs ... on 2 September, 2016
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 161/2016
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, 392 & 394 of the
Companies Act, 1956
Scheme of Amalgamation and Arrangement between:
Ideal Knowledge Park Private Limited
Petitioner/Transferor Company No. 1
Madhur Buildwell Private Limited
Petitioner/Transferor Company No. 2
Prosperity Realtech Private Limited
Petitioner/Transferor Company No. 3
Smridhi Realtech Private Limited
Petitioner/Transferor Company No. 4
AND
Barberry Real Estate and Land Developers Private Limited
Petitioner/Transferee Company
Through Mr. Vijay Nair and Mr. Rahul
Malhotra, 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, 392 & 394 of
the Companies Act, 1956 by the petitioner companies seeking sanction
of the Scheme of Amalgamation and Arrangement between Ideal
Knowledge Park Private Limited (hereinafter referred to as the transferor
company no. 1); Madhur Buildwell Private Limited (hereinafter referred to
as the transferor company no. 2); Prosperity Realtech Private Limited
(hereinafter referred to as the transferor company no. 3) and Smridhi
Realtech Private Limited (hereinafter referred to as the transferor
company no. 4) and Barberry Real Estate and Land Developers 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 no. 1 was incorporated under the
Companies Act, 1956 on 20th February, 2008 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of Uppal Knowledge Park Private Limited. The company changed
its name to Ideal Knowledge Park Private Limited and obtained the fresh
certificate of incorporation on 31st March, 2010.
4. The transferor company no. 2 was incorporated under the
Companies Act, 1956 on 19th March, 2008 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
5. The transferor company no. 3 was incorporated under the
Companies Act, 1956 on 8th May, 2007 with the Registrar of Companies,
NCT of Delhi & Haryana at New Delhi.
6. The transferor company no. 4 was incorporated under the
Companies Act, 1956 on 19th August, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
7. The transferee company was incorporated under the Companies
Act, 1956 on 30th May, 2006 with the Registrar of Companies, NCT of
Delhi & Haryana at New Delhi.
8. The present authorized share capital of the transferor company
no.1 is Rs.1,00,00,000/- divided into 10,00,000 equity shares of Rs.10/-
each. The issued, subscribed and paid-up share capital of the company
is Rs.1,00,00,000/- divided into 10,00,000 equity shares of Rs.10/- each.
9. The present authorized share capital of the transferor company
no.2 is Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each.
The issued, subscribed and paid-up share capital of the company is
Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each.
10. The present authorized share capital of the transferor company
no.3 is Rs.5,00,000/- divided into 50,000 equity shares of Rs.10/- each.
The issued, subscribed and paid-up share capital of the company is
Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each.
11. The present authorized share capital of the transferor company
no.4 is Rs.5,00,000/- divided into 50,000 equity shares of Rs.10/- each.
The issued, subscribed and paid-up share capital of the company is
Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each.
12. The present authorized share capital of the transferee company is
Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each. The
issued, subscribed and paid-up share capital of the company is
Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each.
13. Copies of the Memorandum and Articles of Association of the
transferor and transferee companies have been filed on. The audited
balance sheets, as on 31st March, 2015, of the transferor and transferee
companies, along with the report of the auditors, had also been filed.
14. A copy of the Scheme of Amalgamation and Arrangement has
been placed on record and the salient features of the Scheme have been
incorporated and detailed in the petition and the accompanying affidavits.
It is submitted by the petitioners that the transferor companies are not in
a position to effectively carry out its business activities in the desired
manner, hence, it is considered desirable to amalgamate the transferor
companies into the transferee company so that the assets and resources
of the transferor companies can be conveniently and effectively utilized
by the transferee company to carry on its operations more economically
and efficiently. It is claimed that the amalgamation will enhance the
overall shareholders' value and increase the operational efficiency of the
transferee company.
15. So far as the share exchange ratio is concerned, the Scheme
provides that, upon coming into effect of this Scheme, the transferee
company shall issue and allot equity shares to the shareholders of the
transferor companies in the following ratio:-
"3,926 equity shares of Rs.10/- each of the transferee
company, credited as fully paid up, for every 10,000 equity
shares of Rs.10/- held in the transferor company no. 1."
"332 equity shares of Rs.10/- each of the transferee company,
credited as fully paid up, for every 05 equity shares of Rs.10/-
held in the transferor company no. 2."
"15 equity shares of Rs.10/- each of the transferee company,
credited as fully paid up, for every 02 equity shares of Rs.10/-
held in the transferor company no. 3."
"53 equity shares of Rs.10/- each of the transferee company,
credited as fully paid up, for every 10 equity shares of Rs.10/-
held in the transferor company no. 4."
16. It has been submitted by the petitioners that no proceedings under
Sections 235 to 251 of the Companies Act, 1956 or under the
corresponding provisions of the Companies Act, 2013 are pending
against the petitioner companies.
17. The Board of Directors of the transferor and transferee companies
in their separate meetings held on 16th November, 2015 have
unanimously approved the proposed Scheme of Amalgamation and
Arrangement. Copies of the Resolutions passed at the meetings of the
Board of Directors of the transferor and transferee companies have been
placed on record.
18. The petitioner companies had earlier filed CA (M) No. 190/2015
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 and Arrangement. Vide order dated 18th
January, 2016, this court allowed the application and dispensed with the
requirement of convening and holding the meetings of their equity
shareholders and unsecured creditors, 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 and
Arrangement.
19. The petitioner companies have thereafter filed the present petition
seeking sanction of the Scheme of Amalgamation and Arrangement. Vide
order dated 26th February, 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 Official Liquidator and the Regional Director, Northern
Region and also regarding publication of citations in the aforesaid
newspapers on 26th March, 2016. Copies of the newspaper clippings
containing the publications have been filed along with the said affidavit.
20. 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 June, 2016
wherein he has stated that he has not received any complaint against the
proposed Scheme of Amalgamation and Arrangement from any
person/party interested in the Scheme in any manner and that the affairs
of the transferor companies do not appear to have been conducted in a
manner prejudicial to the interest of their members, creditors or public
interest, as per second proviso of Section 394(1) of the Companies Act,
1956.
21. 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 19th July, 2016 not raising any objection
to the proposed Scheme of Amalgamation and Arrangement.
22. No objection has been received to the Scheme of Amalgamation
and Arrangement from any other party. Learned counsel for the petitioner
has submitted that that neither the petitioner companies nor their counsel
have received any objection pursuant to the citations published in the
newspapers on 26th March, 2016.
23. Considering the approval accorded by the equity shareholders and
creditors of the petitioner companies to the proposed Scheme of
Amalgamation and Arrangement and the affidavits filed by the Regional
Director, Northern Region and the Official Liquidator having not raising
any objection to the proposed Scheme of Amalgamation and
Arrangement, there appears to be no impediment to the grant of sanction
to the Scheme of Amalgamation and Arrangement. Consequently,
sanction is hereby granted to the Scheme of Amalgamation and
Arrangement 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 companies no 1 to 4 shall stand dissolved
without undergoing the process of winding up.
24. 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 the Delhi High Court Bar Association Lawyers Social
Security and Welfare Fund, New Delhi.
25. The petition is allowed in the above terms.
Dasti.
SUDERSHAN KUMAR MISRA, J.
September 02, 2016
