Aoi International Private ... vs Grapecity India Private Limited
2017 Latest Caselaw 773 Del

            IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Judgment reserved on: 14.12.2016
                                      Judgment pronounced on:10.02.2017
CO.PET. 973/2015
IN THE MATTER OF:-
AOI INTERNATIONAL PRIVATE LIMITED
                            ... Petitioner/Transferor Company

                                AND
GRAPECITY INDIA PRIVATE LIMITED
                             ...Petitioner/ Transferee Company

                                Through:     Mr. Ashish Midha, Advocate
                                             for the Petitioner.
                                             Ms. Aparna Mudiam, Asst.
                                             ROC for RD.
                                             Mr. Rajiv Bahl, Advocate for
                                             the OL.
CORAM:
HON'BLE MR. JUSTICE SIDDHARTHMRIDUL

                             JUDGMENT

SIDDHARTHMRIDUL, J.

1. The present petition has been filed jointly, under Section 391(1) to

394 read with Section 100 of the Companies Act, 1956 (hereinafter referred

to as 'the Act') and the Companies Act, 2013 (to the extent applicable) by

AOI International Private Limited (hereinafter referred to as 'Transferor

Company') and GrapeCity India Private Limited (hereinafter referred to as

'Transferee Company') seeking sanction to the Scheme of Amalgamation

(hereinafter referred to as 'Scheme') of the Transferor Company with the

Transferee Company.

2. The registered offices of the Petitioner Companies are situated at New

Delhi, within the jurisdiction of this Court.

3. The Transferor Company was incorporated under the Act on

23.11.1995 with the Registrar of Companies, NCT of Delhi & Haryana at

New Delhi.

4. The Transferee Company was originally incorporated under the Act

on 27.11.1996 with the Registrar of Companies, NCT of Delhi & Haryana at

New Delhi under the name and style of 'Bunka Orient India Private

Limited'. The company changed its name to its present name and obtained

the fresh certificate of incorporation on 20.12.2001 from the Deputy

Registrar of Companies, NCT of Delhi & Haryana at New Delhi.

5. The authorized share capital of the Transferor Company, as on

31.03.2014 is Rs.3,00,00,000/- divided into 30,00,000 equity shares of

RS.10/- each. The issued, subscribed and paid up capital of the company, as

on 31.03.2014 is Rs.1,99,00,000/- divided into 19,90,000 equity shares of

Rs.10/- each.

6. The authorized share capital of the transferee company, as on

31.03.2014 is Rs.21,00,00,000/- divided into 21,00,000 equity shares of

Rs.100/- each. The issued, subscribed and paid up capital of the company is

Rs.20,46,24,000/- divided into 20,46,240 equity shares of Rs.100/- each.

7. Copies of Memorandum and Articles of Association of the Petitioner

Companies have been filed on record along with Company Application

(Main) No. 164 of 2015, which earlier came to be filed by the Petitioner

Companies. The audited balance sheets, as on 31.03.2014, of the Petitioner

Companies, along with the reports of the auditors, have also been filed

alongwith Company Application (Main) No. 164 of 2015 and the same are

on record.

8. A copy of the Scheme of Amalgamation has been placed on record

and the salient features of the Scheme have been incorporated and set out in

detail in the Petition. It has been stated on behalf of the Petitioner

Companies that the proposed scheme will result in formation of a larger

company enabling further growth and development of the businesses of the

said company thus enabling the said company to obtain greater facilities

possessed and enjoyed by one large company compared to a small company

for raising capital, securing and conducting trade and business on favourable

terms and other related benefits. It has further been stated that the proposed

amalgamation will result in reduction in overheads and other expenses,

reduction in administrative and procedural work, eliminate duplication of

work, better and more productive utilization of various resources and will

enable the undertakings concerned to effect internal economies and optimize

productivity.

9. 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 Company

in the following ratio:-

"01 equity share of Rs.100/- each of the transferee company, for every 10 equity shares of Rs.10/- each held in the transferor company."

10. It has been submitted that no proceedings under Sections 235 to 251

of the Act (or under the corresponding provisions of the Companies Act,

2013) are pending against the Petitioners.

11. The Board of Directors of the Petitioner Companies in their separate

meetings held on 15.06.2015 have unanimously approved the proposed

Scheme of Amalgamation. Copies of the Resolutions passed at the meetings

of the Board of Directors of the Petitioner Companies have been placed on

record along with Company Application (Main) No. 164 of 2015.

12. The petitioner companies had earlier filed Company Application

(Main) No. 164 of 2015 seeking directions of this court to dispense with the

requirement of the convening the meetings of their equity shareholders,

secured and unsecured creditors. By way of order dated 06.11.2015, this

Court allowed the application and dispensed with the requirement of

convening and holding the meetings of equity shareholders of the Petitioner

Companies, secured and unsecured creditors of the Transferee company,

(there being no secured creditors and unsecured creditors of the Transferor

Company) to consider and, if thought fit, approve, with or without

modification, the Scheme of Amalgamation.

13. The Petitioner Companies have thereafter filed the present Petition

seeking sanction to the scheme. Vide order dated 18.12.2015, notice in the

Petition was issued to the Regional Director, Northern Region and the

Official Liquidator. Citations were directed to be published in the Delhi

Editions of the newspapers, 'Business Standard' (English) and 'Business

Standard' (Hindi). An affidavit dated 29.04.2016 has been filed by the

Petitioners showing compliance regarding publication of citations on

07.04.2016 in the aforesaid newspapers.

14. Pursuant to the notices issued in the present Petition, the Official

Liquidator has filed a report dated 02.05.2016 wherein it has been stated that

he has not received any complaint against the proposed scheme from any

person/party interested in the proposed scheme and that the affairs of the

Petitioner Companies do not appear to have been conducted in a manner

prejudicial to the interest of its members, creditors or to public interest as per

second proviso of Section 394(1) of the Act.

15. Therefore, no objection has been raised on behalf of the Official

Liquidator to the grant of sanction to the proposed scheme.

16. Further, in response to the notices issued in the present petition the

Regional Director, Northern Region, Ministry of Corporate Affairs has filed

its affidavit dated 14.07.2016 not raising any objection to the grant of

sanction to the proposed scheme.

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

proposed scheme from any other party. The Transferee Company vide

affidavit dated 20.04.2016, filed by its authorized representative, has averred

that the Petitioner Companies have not received any objection to the Scheme

pursuant to publication of citations in the newspapers.

18. Considering the approval accorded by the shareholders of the

Transferor Company and shareholders, secured and unsecured creditors of

the Transferee Company to the proposed scheme; the affidavit filed by the

Regional Director, Northern Region and the report filed by the Official

Liquidator, not raising any objection to the proposed scheme, there appears

to be no impediment to the grant of sanction to the proposed scheme.

Consequently, sanction is hereby granted to the proposed scheme under the

provisions of the Act.

19. The Petitioner Companies shall comply with all the statutory

requirements in accordance with law.

20. A certified copy of this order, sanctioning the proposed scheme, be

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

21. 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

22. 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 proposed 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.

23. The Transferor Company shall stand dissolved without being wound

up.

24. The Petitioner Companies shall deposit a sum of Rs.50,000/- by way

of costs, in the Delhi High Court Bar Association Lawyers' Social Security

and Welfare Fund, New Delhi, within a period of two weeks from today.

25. Consequently, the petition is allowed in the aforesaid terms and is

accordingly disposed of.

SIDDHARTHMRIDUL, J FEBRUARY 10, 2017sb/mk