Ad2C Holdings Private Limited vs Affle (India) Private Limited
2017 Latest Caselaw 249 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI

                              Judgment reserved on: 23.11.2016
                            Judgment pronounced on:16.01.2017


CO.PET. 434/2016

IN THE MATTER OF:-

AD2C HOLDINGS PRIVATE LIMITED
                     ...Transferor Company No.1/Petitioner No.1

                            AND

APPSTUDIOZ TECHNOLOGIES PRIVATE LIMITED
                   ...Transferor Company No.2/Petitioner No.2

                            AND

AD2C (INDIA) PRIVATE LIMITED
                       ...Transferor Company No.3/Non-Petitioner

                            AND

AFFLE (INDIA) PRIVATE LIMITED
                           ...Transferee Company/Non-Petitioner

                         Through:    Mr. P. Nagesh, Advocate
                                     with Ms. Suruchi Sejwar,
                                     Advocate
                                     Mr. Rajiv Bahl, Advocate
                                     for OL
                                     Ms.    Aparna   Mudium,
                                     Assistant  Registrar of
                                     Companies for Regional
                                     Director



CO.PET. 434/2016                                            Page 1 of 1
 CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
                   JUDGMENT

SIDDHARTH MRIDUL, J.

1. The present petition has been filed jointly, under sections 391, 392

and 394 of the Companies Act, 1956 (hereinafter referred to as 'the Act') by

AD2C Holdings Private Limited (hereinafter referred as 'Transferor

Company No.1/Petitioner No.1') and Appstudioz Technologies Private

Limited (hereinafter referred as 'Transferor Company No.2/Petitioner

No.2') seeking sanction to the Scheme of Amalgamation (hereinafter

referred to as 'proposed scheme') of the Transferor Company

No.1/Petitioner No.1, Transferor Company No.2/Petitioner No.2, AD2C

(India) Private Limited (hereinafter referred to as 'Transferor Company

No.3') with Affle (India) Private Limited (hereinafter referred to as

'Transferee Company').

2. Transferor Company No.1/Petitioner No.1 and Transferor Company

No.2/Petitioner No.2 are hereinafter collectively referred to as 'Petitioners'.

3. The registered offices of the Petitioners are situated at New Delhi,

within the jurisdiction of this Court. The registered office of Transferor

Company No.3 is at Gurgaon, Haryana, outside the jurisdiction of this

Court. The registered office of the Transferee Company is at Mumbai,

Maharashtra, outside the jurisdiction of this Court.

4. Transferor Company No.1/Petitioner No.1 was originally

incorporated under the Act on 18.11.2009, under the name of AV

Mobimasta Marketing Private Limited with the Registrar of Companies,

N.C.T. of Delhi & Haryana at New Delhi. Subsequently, its name was

changed to its present name and a fresh certificate was issued in this behalf

on 04.12.2012.

5. Transferor Company No.2/Petitioner No.2 was incorporated under the

Act on 13.06.2011 with the Registrar of Companies, N.C.T. of Delhi &

Haryana at New Delhi.

6. Transferor Company No.3 was incorporated under the Act on

24.08.2011 with the Registrar of Companies, N.C.T. of Delhi & Haryana at

New Delhi.

7. Transferee Company was incorporated under the Act on 18.08.1994

with the Registrar of Companies, Maharashtra under the name of Tejus

Securities Private Limited. Thereafter, its name was changed to its present

name and a certificate in this behalf was issued on 29.09.2006, by the

Registrar of Companies, Maharashtra.

8. The authorized share capital of the Transferor Company

No.1/Petitioner No.1, as on 31.03.2015, 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 Transferor Company No.1/Petitioner No.1, as on

31.03.2015, is Rs.2,50,000/-, divided into 25,000 Equity Shares of Rs.10/-

each.

9. The authorized share capital of the Transferor Company

No.2/Petitioner No.2, as on 31.03.2015, 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 Transferor Company No.2/Petitioner No.2, as on

31.03.2015, is Rs.1,00,000/-, divided into 10,000 Equity Shares of Rs.10/-

each.

10. The authorized share capital of the Transferor Company No.3, as on

31.03.2015, is Rs.3,00,00,000/-, divided into 30,00,000 Equity Shares of

Rs.10/- each. The issued, subscribed and paid up share capital of the

Transferor Company No.3, as on 31.03.2015, is Rs.2,55,15,000/-, divided

into 25,51,500 Equity Shares of Rs.10/- each.

11. The authorized share capital of the Transferee Company, as on

31.03.2015, is Rs.16,00,00,000/-, divided into 1,60,00,000 Equity Shares of

Rs.10/- each. The issued, subscribed and paid up share capital of the

Transferee Company, as on 31.03.2015, is Rs.15,82,39,840/-, divided into

1,58,23,984 Equity Shares of Rs.10/- each.

12. Copies of the Memorandum of Association and Articles of

Association of the Transferor Companies and the Transferee Company have

been filed on record. The Audited Balance Sheets as on 31.03.2014; and the

provisional accounts as on 31.03.2015 and 30.09.2015, of the Transferor

Companies and the Transferee Company along with the Auditors' Reports

have also been filed and the same are on record.

13. A copy of the proposed scheme has been filed on record and the

salient features thereof have been incorporated and set out in detail in the

present petition. It has been stated on behalf of the Petitioners that the

proposed amalgamation shall result in greater managerial efficiency and

integration, leading to greater financial strength and unfettered cash flow. It

has been further been stated that, inter alia, the proposed scheme will result

in operational synergies and cost savings.

14. So far as share exchange ratio is concerned, the proposed scheme

provides that upon coming into effect of the proposed scheme, the following

shall be done:

74 fully paid up equity shares of Rs.10/- each, of the Transferee Company shall be issued in lieu of 21 fully paid up equity shares of Rs.10/- each of the Transferor Company No.1.

586 fully paid up equity shares of Rs.10/- each, of the Transferee Company shall be issued in lieu of 05 fully paid up equity shares of Rs.10/- each of the Transferor Company No.2.

48 fully paid up equity shares of Rs.10/- each, of the Transferee Company shall be issued in lieu of 05 fully paid up equity shares of Rs.10/- each of the Transferor Company No.1.

15. 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 any of the Petitioners.

16. The Board of Directors of the Transferor Companies and the

Transferee Company in their separate meetings held on 13.05.2015 and

05.08.2015, have unanimously approved the proposed scheme. Copies of

the Resolutions passed at the meetings of the Board of Directors of the

Transferor Companies and the Transferee Company have been placed on

record.

17. The Petitioners had earlier filed a first motion application being

Company Application (Main) No. 176 of 2015, seeking directions of this

Court to dispense the requirement of convening meetings of Equity

Shareholders and Unsecured Creditors of Transferor Company

No.1/Petitioner No.1; equity shareholders, secured creditors of Transferor

Company No.2/Petitioner No.2, to consider, and if thought fit, approve, with

or without modifications, the proposed scheme and seeking directions of the

Court to convene a meeting of the unsecured creditors of Transferor

Company No.2/Petitioner No.2, to consider, and if thought fit, approve, with

or without modifications, the proposed scheme. By way of order dated

23.05.2015, this Court allowed the said application and dispensed with the

requirement of convening and holding the meetings of Equity Shareholders

and Unsecured Creditors of Transferor Company No.1/Petitioner No.1;

equity shareholders, secured creditors of Transferor Company

No.2/Petitioner No.2, to consider and, if thought fit, approve, with or

without modification, the proposed scheme. Meeting of unsecured creditors

of Transferor Company No.2 was directed to be convened on 09.02.2016, to

consider, and if thought fit, approve, with or without modifications, the

proposed scheme.

18. As per the directions of this Court, by way of order dated 23.12.2015,

meeting of unsecured creditors of Transferor Company No.2 was convened

and the proposed scheme was duly approved and the report of the

Chairperson, dated 19.02.2016, in this behalf has been placed on record.

19. The Petitioners have thereafter filed the present Petition seeking

sanction to the proposed scheme. Vide order dated 18.05.2016, 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, 'Indian Express' (English) and 'Jansatta'

(Hindi). An affidavit dated 01.10.2016 has been filed by the Petitioners

showing compliance regarding publication of citations in the aforesaid

newspapers on 21.08.2016.

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

Liquidator has filed a report dated 09.09.2016 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 Petitioners 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.

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

Liquidator to the grant of sanction to the proposed scheme.

22. In response to the notices issued in the present Petition, Regional

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

affidavit dated 14.09.2016 stating that the Regional Director has no

objection to the proposed scheme. However it has been stated therein, in

paragraph 11, that the Transferee Company may be advised to comply with

the relevant provisions of the Companies Act, 2013 for alteration in objects

clause of its Memorandum of Association.

23. In this behalf, learned counsel appearing on behalf of the Petitioners

undertakes to comply with the relevant provisions of the Companies Act,

2013 for alteration in objects clause of its Memorandum of Association.

24. In view of the foregoing, it has been stated by Ms. Aparna Mudiam,

Assistant Registrar of Companies appearing on behalf of the Regional

Director, that no further objections remain.

25. It is observed that no objections have been forthcoming from any

party pursuant to the publication of citations in newspapers on 21.08.2016.

26. In view of the approval accorded by the shareholders and creditors of

the Petitioners to the proposed scheme; the report filed by the Official

Liquidator not raising any objection to the proposed scheme and the

affidavit filed by the Regional Director, Northern Region, wherein all

observations raised stand satisfied, there appears to be no impediment to the

grant of sanction to the proposed scheme. Hence, sanction is hereby granted

to the proposed scheme under sections 391 and 394 of the Companies Act,

1956. The petitioners will comply with the statutory requirements in

accordance with law.

27. A certified copy of this order, sanctioning the propsed scheme, be

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

28. Resultantly, it is hereby directed that the Petitioners will comply with

all the provisions of the proposed scheme and, in particular, those which are

referred to hereinabove.

29. 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 Companies for the relevant

period, and that, which may arise on account of the proposed scheme being

sanctioned.

30. 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 Transferor Companies and

the Transferee Company.

31. The Transferor Companies shall stand dissolved without being wound

up.

32. 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.

33. Learned counsel for the Official Liquidator prays that costs of at least

Rs.2,00,000/- should be paid by the Petitioners keeping in view the fact that

the matter has involved examination of extensive records. Learned counsel

for the Petitioners states that the same is acceptable to him. The Petitioners

shall deposit a sum of Rs.2,00,000/- 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.

34. The Petition is allowed in above terms and is accordingly disposed of.

SIDDHARTH MRIDUL, J JANUARY 16, 2017 sb/mk