Delhi High Court
Foundation E-Learning Private ... vs ... on 2 September, 2016
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 226/2016
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:
Foundation e-Learning Private Limited
Petitioner/Transferor Company
WITH
Cambridge University Press India Private Limited
Non-Petitioner/Transferee Company
Through Mr. Sharad Vaid, Advocate for
the petitioner
Ms. Aparna Mudiam, Asstt. Registrar
of Companies for the Regional Director
Mr. Kanwal Chaudhary, 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 Foundation e-Learning
Private Limited (hereinafter referred to as the petitioner/transferor
company) with Cambridge University Press India Private 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 incorporated under the
Companies Act, 1956 on 27th September, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
4. The present authorized share capital of the petitioner/transferor
company is Rs.10,00,000/- divided into 1,00,000 equity shares of Rs.10/-
each. The present issued, subscribed and paid-up share capital of the
company is Rs.1,11,000/- divided into 11,100 equity shares of Rs.10/-
each.
5. Copies of the Memorandum and Articles of Association of the
petitioner/transferor company and the transferee company have been
filed on record. The audited balance sheets, as on 31st March, 2015, of
petitioner/transferor company and the transferee company, along with the
report of the auditors, 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 petition and the accompanying affidavit. It is claimed by
the petitioner that the proposed amalgamation will simplify group and
business structure and eliminate multiplicity of companies leading to
synergies in operations, achieving efficiencies and economies of scale
and reduction in operational costs, overheads, administrative and other
expenditure.
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 issued, subscribed and paid-up share capital of the transferor
company held by the transferee company and its nominees shall stand
cancelled/extinguished.
8. It has been submitted by the petitioner that no proceedings under
Sections 235 to 251 of the Companies Act, 1956 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 6th 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 transferor and transferee companies have been
placed on record.
10. The petitioner/transferor company had earlier filed CA (M) No.
30/2016 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 22nd February, 2016, this
court allowed the application and dispensed with the requirement of
convening and holding the meetings of the equity shareholders and
unsecured creditor of the petitioner/transferor company, there being no
secured creditors of the petitioner 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 having to approach this Court
under Section 391(2) of the Companies Act, 1956 for sanction of the
Scheme of Amalgamation.
11. The petitioner/transferor company has thereafter filed the present
petition seeking sanction of the Scheme of Amalgamation. Vide order
dated 15th 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
Official Liquidator and the Regional Director, Northern Region and also
regarding publication of citations in the aforesaid newspapers on 11th
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 20th 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 4th August, 2016 stating that he had no
objection to the proposed Scheme of Amalgamation subject to filing of
compounding application for violation committed under Sections 166 and
210 of the Companies Act, 1956 and payment of pending demand to the
Income Tax Department by the petitioner company. The Regional
Director in para 6 of his report has stated that a letter dated 19.04.2016
has been received from the Income Tax Officer Ward 9(3) stating that a
demand of Rs.32,530/- + interest under Section 220 of the IT Act, 1961 is
outstanding against the transferor company. Therefore, their office has
objection if the amalgamation took place before payment of said
outstanding demand. The Regional Director in para 10 of his report has
submitted that there is an Audit Qualification in FY 2013 & 2014
regarding non compliance of Section 210 of the Companies Act, 1956 as
the financial statements of the year ended 31.03.2012 and 31.03.2013
were not laid before the shareholders in the annual general meeting
within the stipulated time.
14. In response to the aforesaid observations, the petitioner/transferor
company in the affidavit dated 6th August, 2016 of Mr. Nachiket
Mohagaonkar, Director of the petitioner company has submitted that the
transferor company has made the payment of Rs.32,530/- on 10th May,
2016 towards the income tax demand. A copy of the challan evidencing
payment to the Income Tax Department is also placed on record. With
regard to the second observation, the transferee company has
undertaken to file the requisite compounding application(s) for violation
committed under Section 166 and 210 of the Companies Act, 1956 in due
course without demur or delay, as required under the relevant applicable
provisions. It has been further submitted that the transferee company will
remain in existence even after the sanction of the Scheme and in case
the transferee company fails to file the requisite compounding
application, then the ROC may take penal action against the transferee
company as provided in law. In view of the aforesaid, the observations
made by the Regional Director stand satisfied.
15. No objection has been received to the Scheme of Amalgamation
from any other party. The petitioner company, in the affidavit dated 4th
August, 2016 of Mr. Nachiket Mohagaonkar, Director of the petitioner
company, has submitted that neither the petitioner companies nor their
counsel have received any objection pursuant to the citations published
in the newspapers on 11th 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
