Sharma Farms Private Limited vs Globus Projects Private Limited
2016 Latest Caselaw 6178 Del

89
        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Judgment delivered on: 22.09.2016

CO.PET. 802/2015

IN THE MATTER OF:-

SHARMA FARMS PRIVATE LIMITED
                        ...Petitioner No.1/Transferor Company

                                   AND

GLOBUS PROJECTS PRIVATE LIMITED
                         ...Petitioner No.2/Transferee Company

                                Through:    Mr. Amit Goel, Advocate for
                                            the Petitioners.
                                            Ms. Aparna Mudiam, Assistant
                                            Registrar of Companies for
                                            Regional Director.

CORAM:
HON'BLE MR JUSTICE SIDDHARTH MRIDUL

                             JUDGMENT

SIDDHARTH MRIDUL, J

CO. APPL.2987/2016 (Condonation of Delay in Filing Affidavit) The present is an application under Rule 7 read with Rule 9 of the Companies (Court) Rules, 1959 seeking condonation of delay of 80 days in filing the affidavit of the Regional Director, Northern Region, under Section

394-A of the Companies Act, 1956, in compliance to the directions issued by this Court by way of order dated 18.11.2015.

After hearing counsel for the parties and in view of the reasons stated in the application, which are duly supported by an affidavit, the delay of 80 days in filing the aforestated affidavit is condoned. The affidavit is taken on record.

The application is disposed of accordingly.

CO. APPL.2996/2016 (Condonation of Delay in Filing Rejoinder in Reply to the Affidavit Dated 11.04.2016 of the RD, NR)

The present application under Rule 9 of the Company (Court) Rules, 1959 read with Section 151 of the Code of Civil Procedure Code, 1908 seeks condonation of delay 93 days in filing the rejoinder affidavit in reply to the representation/affidavit dated 11.04.2016 of the Regional Director, Northern Region, Ministry of Corporate Affairs, Delhi under Section 394-A of the Companies Act, 1956.

For the reasons stated in the application, which are duly supported by an affidavit, the delay of 93 days in filing rejoinder in reply to the affidavit dated 11.04.2016 of the Regional Director, Northern Region is condoned. The rejoinder be taken on record.

The application is disposed of accordingly.

CO. APPL.1390/2016 (Condonation of Delay in Filing Report)

The present is an application under Rule 9 of the Companies (Court) Rules, 1959 seeking condonation of delay of 94 days in filing the report of the Official Liquidator under second proviso to Section 394(1) of the Companies Act, 1956.

After hearing counsel for the parties and in view of the reasons stated in the application, which are duly supported by an affidavit, the delay of 94 days in filing the aforesaid report is condoned. The report is taken on record.

The application is disposed of accordingly.

CO.PET. 802/2015

1. The present is a Second Motion Petition filed jointly by Sharma Farms

Private Limited (hereinafter referred to as "Transferor Company") with

Globus Projects Private Limited (hereinafter referred to as "Transferee

Company") under Sections 391 and 394 of the Companies Act, 1956

(hereafter referred to as "the Act") for approval of the Scheme of

Amalgamation (hereafter referred to as "the Scheme").

2. The Transferor Company and the Transferee Company, have been

hereinafter, jointly referred to as "Petitioner Companies".

3. The registered offices of the Petitioner Companies are situated in the

National Capital Territory of Delhi, and therefore, this Court has the

necessary jurisdiction to adjudicate the present petition.

4. The details of the authorized share capital, issued, subscribed and paid

up capital qua Petitioner Companies, have been set out in paragraph 1.9 of

the Scheme.

5. The Transferor Company was originally incorporated under the Act,

on 7th June, 2005 with the Registrar of Companies, State of Punjab. The

Registered Office of the Transferor Company was shifted from the State of

Punjab to NCT of Delhi and a certificate was obtained in this regard from the

Registrar of Companies, NCT of Delhi & Haryana at New Delhi on 7th

January, 2014.

6. The present authorized share capital of the Transferor Company is

Rs.2,00,00,000/-, divided into 20,00,000 Equity Shares of Rs.10/- each. The

issued, subscribed and paid-up share capital of the Transferor Company is

Rs.1,54,70,000/-, divided into 15,47,000 Equity Shares of Rs.10/- each.

7. The Transferee Company was originally incorporated under the

Companies Act, 1956 on 13th September, 2005 with the Registrar of

Companies, State of Punjab. The Registered Office of the Transferee

Company was shifted from the State of Punjab to NCT of Delhi and a

certificate was obtained in this regard from the Registrar of Companies, NCT

of Delhi & Haryana at New Delhi 19th November, 2013.

8. The present authorized share capital of Transferee Company is

Rs.10,00,00,000/-, divided into 1,00,00,000 Equity Shares of Rs.10/- each.

The issued, subscribed and paid-up share capital of the Transferee Company

is Rs.7,44,60,000/- (Rupees Seven Crore Forty Four Lac Sixty Thousand

only), divided into 74,46,000 Equity Shares of Rs.10/- each.

9. It has been averred on behalf of the Petitioner Companies that there

are no proceedings pending against them, under Sections 235 to 251 of the

Act (including their corresponding sections of the Companies Act, 2013).

10. It has been further submitted on behalf of the Petitioner Companies

that the Scheme has been approved by the respective Board of Directors

(BOD) of the Petitioner Companies. Copies of the BOD resolutions dated

16.02.2015 have been filed and the same are on record.

11. The Copies of the Memorandum of Association and Articles of

Association, of each of the Petitioner Companies, have been duly filed as

Annexures to Company Application (M) No. 58 of 2015 (Application for

First Motion), which earlier came to be filed by the Petitioner Companies.

The same are on record. The audited financial statements, as on 31st March,

2014, alongwith the auditors' reports, pertaining to each of the Petitioner

Companies have also been duly filed by the Petitioner Companies and the

same are on record.

12. A copy of the Scheme has been duly placed on record and the salient

features of the Scheme, have been incorporated and detailed, in the present

petition and the accompanying affidavit. It has been averred on behalf of the

Petitioner Companies that the proposed amalgamation would result in

enhancement of business synergy and consolidation of these companies into

one large company with a stronger asset base. It has been further submitted

on behalf of the Petitioner Companies that the proposed amalgamation will

result in usual economies of a centralized and a large company including

elimination of duplicate work, reduction in overheads, better and more

productive utilization of human and other resources and enhancement of

overall business efficiency. It will aid in further expansion, growth and

stabilisation of business, by combining the managerial and operating strength

of the two companies by building a wider capital and financial base.

13. The Share Exchange Ratio for the Amalgamation has been provided

for in the Scheme. The relevant terms of Clause 2.3.1 of the Scheme,

providing for the same, are summarized herein below:

o 68 equity shares of Rs.10/- each, of the Transferee

Company, credited as fully paid up, for every 100 fully paid

up equity shares of Rs.10/- each held by the shareholders in

the Transferor Company.

14. To recapitulate, the Petitioner Companies had, in the earlier round,

filed an application (i.e. application for the First Motion), being Company

Application (M) No. 58 of 2015, whereby a prayer was sought, to dispense

with the requirement of convening the meetings of the equity shareholders

and unsecured creditors of the Transferor Company and the equity

shareholders of the Transferee Company and for convening a meeting of the

unsecured creditors of the Transferee Company.

15. This Court vide order dated 18.08.2015, allowed the abovementioned

application and dispensed with the requirement of convening meeting of

equity shareholders and unsecured creditors of Transferor Company and

equity shareholders of the Transferee Company. Further, vide order dated

18.08.2015, directions were given for convening of meeting of Unsecured

Creditors of the Transferee Company.

16. A perusal of the report of the Chairperson dated 03.10.2015, qua the

meeting of Unsecured Creditors of the Transferee Company reveals that it is

apparent that the Scheme was approved unanimously by the Unsecured

Creditors of the Transferee Company.

17. Pursuant to the same, the Petitioner Companies have filed the instant

petition (i.e. Second Motion Petition). Notice in the present petition was

issued by this Court, by way of the order dated 18.11.2015, and the said

order dated 18.11.2015 was modified, vide order of this Court dated

19.02.2016. Notice in the present petition was accepted on behalf of the

Official Liquidator (OL) and the Regional Director (RD), Northern Region.

18. Furthermore, vide order of this Court dated 19.02.2016, citations were

directed to be published. It has been noted that Citations were published, in

Delhi Editions of the newspapers, namely, 'Indian Express' (English, Delhi

Edition) and 'Jansatta' (Hindi, Delhi Edition) on 19.03.2016, in compliance

with the order of this Court dated 19.02.2016. An affidavit dated 07.04.2016

demonstrating service of the petition on the Official Liquidator, Registrar of

Companies and the Regional Director, Northern Region.

19. Pursuant to the issuance of notices in the present petition, report of the

Official Liquidator (OL) dated 06.04.2016 has been filed, wherein, inter

alia, it has been stated that no complaint qua the Scheme, has been received

from any person/party interested in the Scheme. Further, it has been stated in

the said report dated 06.04.2016, that on the basis of the information

supplied by the Petitioner Companies, it appears, that the affairs of the

Petitioner Companies have been conducted in a manner which could not be

construed as being prejudicial to either the interest of their members or the

public at large.

20. In other words, it has been averred by the OL in the report dated

06.04.2016, that the affairs of the Petitioner Companies, do not fall foul of

the provisions of the Second Proviso to Section 394(1) of the Act. Thus, it

has been submitted on behalf of the OL, in effect, that no objection would be

raised on behalf of the OL, if this Court were to sanction the Scheme.

21. Further, in response to the notices issued in the present Petition,

Sh. A. K. Chaturvedi, Regional Director, Northern Region, Ministry of

Corporate Affairs, filed his affidavit dated 11.04.2016 wherein, inter alia, it

has been stated vide para 5 of the said Affidavit, that the Transferee

Company has not appointed Whole time Company Secretary in the past, thus

violating the provisions of section 383A of the Act. It has further been stated

by the Regional Director in his affidavit dated 11.04.2016, that the

Transferee Company has also not filed its balance sheet and annual return for

the financial year ended on 31.03.2015 and thus prima facie violating the

provisions of section 92 & 137 read with section 403 of the Companies Act,

1956/2013.

22. It has been noted that in response to the objection raised by the

Regional Director, Mr. Mayur Shah, Director of the Transferee Company

filed an affidavit dated 11.08.2016, on behalf of the Petitioner Companies.

Counsel appearing on behalf of the Petitioner Companies has invited my

attention to paragraph 3 of their affidavit dated 11.08.2016, in reply to the

affidavit dated 11.04.2016 of the Regional Director, Northern Region to urge

that the transferee company has already appointed a Whole Time Company

Secretary on 01.08.2016 and filed Form DIR-12 qua his appointment and

that the only annual return for the financial year ending 31.03.2015 has been

filed on 08.04.2016 as is evidenced by the copy of the form MGT-7. Lastly,

it is submitted that the Balance Sheet and Annual Return for the financial

year ended on 31.03.2015, pertaining to the Transferee Company, have been

field on 04.08.2016 and 08.04.2016, respectively. The copies of the

aforestated documents have been placed on record as Annexures A (Colly.),

Annexure B (Colly.) and Annexure C (Colly.) to the said affidavit. The

copies of Form AOC-4 and Form MGT-7, evidencing the due filing of

Balance Sheet and Annual Return, have also been placed on record.

23. In view of the aforesaid, the objections raised by the Regional Director

stand satisfied. Thus, it is evident that neither the Regional Director nor the

Official Liquidator has any objection remaining to the grant of relief, as

prayed for by the petitioner, in the present petition.

24. It has been noted that no objections have been received to the Scheme

from any other party. The Petitioner Companies, vide affidavit dated

07.04.2016, have submitted that neither the Petitioner Companies nor their

counsel have received any objection pursuant to the citations published in

the newspapers dated 19.03.2016.

25. In view of the foregoing, upon considering the approval accorded by

the members and creditors of the Petitioner Companies to the proposed

Scheme, and the affidavits filed by the Regional Director, Northern Region,

Ministry of Corporate Affairs and the Official Liquidator attached to this

Court, whereby no objections have been raised to the proposed Scheme,

there appears to be no impediment to the grant of sanction to the Scheme.

Consequently, sanction is hereby granted to the Scheme under sections 391

and 394 of the Act. The Petitioner Companies will however, comply with the

statutory requirements, in accordance with law.

26. A certified copy of this order, sanctioning the Scheme, be filed with

the ROC, within thirty (30) days of its receipt.

27. Resultantly, it is hereby directed that the Petitioner Companies will

comply with all provisions of the Scheme and, in particular, those which are

referred to hereinabove.

28. In any event, notwithstanding what has been stated on behalf of the

Petitioner Companies hereinabove, the Transferee Company will file an

undertaking with this Court, within two weeks from today, stating therein,

that it will take over and defray all liabilities of the Transferor Company. It

is also made clear, that the concerned Statutory Authority will be entitled to

proceed against the Transferee Company qua any liability which it would

have fastened onto the Transferor Company for the relevant period, and that,

which may arise on account of the Scheme being sanctioned.

29. Notwithstanding the above, if there is any deficiency found or,

violation committed qua any enactment, statutory rule or regulation, the

sanction granted by this Court to the Scheme will not come in the way of

action being taken, albeit, in accordance with law, against the concerned

persons, directors and officials of the Petitioner Companies.

30. The Transferor Company shall stand dissolved without being wound

up.

31. It is made clear, that this order shall not be construed as an order

granting exemption, inter alia, from, payment of stamp duty or, taxes or, any

other charges, if, payable, as per the relevant provisions of law or, from any

applicable permissions that may have to be obtained or, even compliances

that may have to be made, as per the mandate of law.

32. Learned counsel appearing on behalf of the Official Liquidator prays

that costs of at least Rs.1,00,000/- may be paid by the Petitioner Companies,

keeping in view the fact, that the matter called for examination of extensive

records and prioritised hearings. Learned counsel appearing on behalf of the

Petitioner Companies state that the same is acceptable to them.

33. In view of the foregoing, the Petitioner Companies shall deposit a sum

of Rs.1,00,000/-, by way of costs, in Common Pool Fund of the Official

Liquidator, Delhi.

34. Consequently, the petition is allowed and disposed of, in the aforesaid

terms.

SIDDHARTH MRIDUL, J SEPTEMBER 22, 2016 dn