Delhi High Court
Biobase Databases India Private ... vs Qiagen India Private Limited on 13 January, 2017
IN THE HIGH COURT OF DELHI AT NEW DELHI
Order delivered on:13.01.2017
CO. APPL. (M) 104/2016
IN THE MATTER OF:
BIOBASE DATABASES INDIA PRIVATE LIMITED
...Transferor Company
AND
CLC BIO INDIA PRIVATE LIMITED ...Transferor Company
WITH
QIAGEN INDIA PRIVATE LIMITED ...Transferee Company/Applicant
Through: Mr. Peeush Sharma, Mr. Shaurya M.
Tomar and Mr. Kartikey Nayyar,
Advocates for the Applicants.
.
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
SIDDHARTH MRIDUL, J.
1. The present application has been filed under Sections 391 to 394 of the
Companies Act, 1956, (hereinafter referred to as 'the Act') read with rules 6 &
9 of the Companies (Court) Rules, 1959, by Qiagen India Private Limited
(hereinafter referred to as 'Applicant Company/Transferee Company') in
respect of the Scheme of Amalgamation (hereinafter referred to as 'the
Scheme') between Biobase Databases India Private Limited (herein after
referred to as 'Transferor Company') and CLC Bio India Private Limited
(herein after referred to as 'Transferor Company')with Qiagen India Private
Limited and their respective shareholders and creditors.
2. The registered office of the Transferor Company No. 1 is situated in
Bengaluru. It has been stated in the present application that an application
seeking dispensation of requirement of convening and holding of meetings of
the Equity shareholders, Secured and Unsecured Creditors of Transferor
Company no. 1 had been instituted before the Hon'ble High Court of Karnataka,
Bengaluru being Company Application no. 384/2016 which was allowed by
way of order dated 15.07.2016.
3. The registered office of the Transferor Company No. 2 is situated in
Hyderabad. It has been stated in the present application that an application
seeking dispensation of requirement of convening and holding of meetings of
the Equity shareholders, Secured and Unsecured Creditors of Transferor
Company no. 2 had been instituted before the Hon'ble High Court of Judicature
at Hyderabad being Company Application no. 904/2016 which was allowed by
way of order dated 12.07.2016.
4. The registered office of the Transferee Company is situated within the
territory of NCT of Delhi and therefore, within the jurisdiction of this Court.
5. Transferor Company No. 1 was incorporated on 05.05.2006 with the
Registrar of Companies, Bangalore, Karnataka under the provisions of the Act.
6. The Transferor Company No. 2 was incorporated on 06.09.2006 with the
Registrar of Companies, Hyderabad, Andhra Pradesh, under the provisions of
the Act.
7. The Transferee Company was incorporated on 11.12.2009 with the
Registrar of Companies, Delhi under the provisions of the Act.
8. The Authorised Share Capital of the Transferor Company No. 1 as on
31.03.2016 is,Rs.10,00,000/-, divided into 1,00,000 equity shares of Rs.10/-
each. The issued, subscribed, paid up Share capital of Transferor Company
No.1 as on 31.03.2016 is,Rs.10,00,000/-, divided into 1,00,000 equity shares of
Rs.10/- each.
9. The Authorised Share Capital of the Transferor Company No. 2 as on
31.03.2016 is, Rs.5,00,000/-, divided into 50,000 equity shares ofRs.10/- each.
The issued, subscribed, paid up Share Capital of Transferor Company No. 2 as
on 31.03.2016 is,Rs.5,00,000/-, divided into 50,000 equity shares of Rs.10/-
each.
10. The Authorised Share Capital of the Transferee Company as on
31.03.2016 is,Rs.18,50,00,000/-, divided into 1,85,00,000 equity shares of
Rs.10/- each. The issued, subscribed, paid upShare Capital of the Transferee
Company as on 31.03.2016 is,Rs.11,91,00,000/-,divided into 1,19,10,000 equity
shares of Rs.10/- each.
11. The copies of Memorandum of Association and Articles of Association of
the Transferor Companies and the Transferee Company have been filed and the
same are on record. The audited balance sheets and auditor's reports as on
31.03.2015 of the Transferor Companies and the Transferee Company have also
been placed on record.
12. The Transferor Companies are wholly owned subsidiaries of Transferee
Company and its nominees and therefore, upon amalgamation of Transferor
Companies with Transferee Company upon the Scheme becoming effective,
the entire paid-up equity share capital of the Transferor Companies held by the
Transferee Company and its nominees, shall without any act or deed stand
automatically cancelled and be extinguished and in lieu thereof, the Transferee
Company shall not be required to issue and/or allot any shares to the members
of the Transferor Companies.
13. Upon the scheme becoming effective and upon the transfer and vesting of
Transferor Company No. 1 and Transferor Company No. 2 into the Transferee
Company, pursuant to the scheme, the entire share capital of Transferor
Company No. 1 equal to Rs.10,00,000/- (divided into 1,00,000 equity shares of
Rs.10/- each) and that of Transferor Company No. 2 equal to Rs.5,00,000/-
(divided into 50,000 equity shares of Rs.10/- each) shall stand merged with the
authorized share capital of Transferee Company. Thus, the authorized share
capital of the Transferee Company shall stand increased by an amount of
Rs.15,00,000/- i.e. the authorized share capital of the Transferee Company shall
stand increased to Rs.18,65,00,000/- (divided into 1,86,50,000 equity shares of
Rs.10/- each).
14. It has been submitted on behalf of the Applicant Companies that no
proceedings under Sections 235 to 251 of the Act or under corresponding
provisions of the Companies Act, 2013 are pending against the Applicant
Companies as on the date of filing of the present application.
15. The proposed Scheme has been approved by the Board of Directors
(hereinafter referred to as 'BOD') of the Applicant Company in its meeting held
on 29.04.2016. Copy of the Resolution passed at the meeting of the Board of
Directors of the Applicant Company has been placed on record.
16. A prayer has been made for dispensing with the requirement of
convening the meetings of the Shareholders and Unsecured Creditors of the
Applicant Company.
17. The Applicant/Transferee Company does not have any secured creditors.
Therefore the requirement of convening the meeting of secured creditors does
not arise.
18. The Applicant/Transferee Company has two (2) equity shareholders.
Both the equity shareholders have given their written consents/NOCs to the
proposed Scheme. Their written consents/NOCs have been placed on record.
They have been examined and found in order.
19. In view thereof, the requirement of convening the meeting of the equity
shareholders of Transferee Company to consider and, if thought fit, approve,
with or without modification, the proposed Scheme is dispensed with.
20. The Transferee Company has twelve (12) unsecured creditors. Out of the
twelve unsecured creditors, eleven (11) unsecured creditors have given written
consents/NOCs to the proposed Scheme (being 99.9% in value). The said
written consents/NOCs have been placed on record along with an Application
being Company Application No. 3952 of 2016. The same have been examined
and found in order.
21. In this regard it has been submitted by the Learned counsel for the
Applicant/Transferee Company that the transferor companies are the wholly
owned subsidiaries of the Applicant/Transferee Company and since it is an
amalgamation of the wholly owned subsidiary company with its holding
company, therefore, rights of secured and unsecured creditors of the transferee
company will not be affected adversely. It has been further submitted that no
new shares will be issued on amalgamation and both the transferor companies
as well as the transferee company are not proposing any arrangement with their
shareholders and creditors, hence, written consents/NOCs of all the unsecured
creditors of the applicant/transferee company are not required to be obtained for
the purpose of the amalgamation.
22. In support of his submission, learned counsel for the applicant has placed
reliance on the decision of this Court in the matter of M/s. Imperia Homes Pvt.
Ltd. in Company Application (Main)No.78/2014wherein in similar
circumstances, this court, has dispensed with the requirement of convening and
holding the meetings of the secured and unsecured creditors of the transferee
company without obtaining their consents/no objection to the proposed Scheme
of Amalgamation. Further, reliance has been placed on a decision of this Court
on 10.02.2016 in the matter of Tata Internet Services Limited in Company
Application (Main) No.48/2015and on the decision of this Court on 06.02.2015
in the matter of M/s. Ganges Concast Industries Limited & Salasar Stainless
Limited in Company Application (Main) No.15/2015.
23. In view of the foregoing and for the reasons stated in the application, the
requirement of convening and holding the meetings of the unsecured creditors
of the applicant/transferee company, to consider and if though fit, approve, with
or without modification, the proposed Scheme of Amalgamation, is dispensed
with.
24. Further, a prayer has also been made for seeking dispensation with the
requirement of the Applicant/Transferee Company, to approach this Hon'ble
Court, from filing second motion petition seeking sanction of the Scheme of
Amalgamation.
25. In support of this prayer, it has been urged that the Transferor Companies
are the wholly owned subsidiaries of the Applicant/Transferee Company and
upon scheme becoming effective, no new shares in the Applicant/Transferee
Company will be allotted in lieu of the shares held by it and its nominee in the
Transferor Companies. The entire share capital of the Transferor Companies
shall stand cancelled and be extinguished without any further act or deed. It has
also been stated that the interest of the creditors of the Applicant/Transferee
Company shall remain unaltered. Therefore, there is no arrangement, which is
proposed with the Shareholders or the Creditors of the Applicant/Transferee
Company.
26. Reliance in this regard has been placed on the decisions of this Court in
Company Application 378/1974 titled as Sharat Hardware Industries P. Ltd
reported as (1978) 48 Comp Cas 23 Delhi; Mahaamba Investment Limited v.
IDI Limited reported as [2001]105CompCas16 (Bom); decision of this Court on
05.12.2012 in Company Application (Main) No. 179/2012 titled as eMeter
India Pvt. Ltd. v. Siemens Technology And Services Pvt. Ltd.; decision of this
Court on 22.02.2016 in Company Application MainNo.30/2016 titled as
Foundation e-Learning Private Limited v. Cambridge University Press India
Private Limited.
27. In view of the foregoing and in view of the settled position of law, the
requirement of the Applicant/Transferee Company to file a petition seeking
sanction of the scheme, is dispensed with.
28. The application stands allowed in the aforesaid terms and the same is
disposed of accordingly.
SIDDHARTH MRIDUL, J
JANUARY 13, 2017
sb/mk
