Nalian Engineers Private Limited vs Sunrays Engineers Private ...
2017 Latest Caselaw 521 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Judgment Reserved On: 06.12.2016
                                      Judgment Pronounced On: 30.01.2017

CO.PET.268/2016

NALIAN ENGINEERS PRIVATE LIMITED
                            .....Petitioner/Transferor Company

                                    AND

SUNRAYS ENGINEERS PRIVATE LIMITED
                            .....Petitioner/Transferee Company

                                 Through:    Mr. Dilip Singh, Advocate for
                                             the Petitioners.
                                             Ms. Aparna Mudiam, Assistant
                                             ROC, Mr. Rajiv Bahl, Advocate
                                             for the OL.

CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

                              JUDGMENT

SIDDHARTH MRIDUL, J.

1. The present petition has been filed jointly under Sections 391(2) and

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

Nalian Engineers Private Limited (hereinafter referred to as 'Transferor

Company') and Sunrays Engineers Private Limited (hereinafter referred to as

'Transferee Company'), seeking sanction of the scheme of amalgamation

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

Transferee Company.

2. The registered offices of each of the Petitioner Companies are situated

at Delhi, within the jurisdiction of this Court.

3. The Transferor Company was incorporated under the Act and a

certificate in this behalf was issued on 27.04.2010 by the Assistant Registrar

of Companies, NCT of Delhi and Haryana at New Delhi.

4. The Transferee Company was incorporated under the Act vide

certificate of incorporation dated 28.07.2005, issued by the Assistant

Registrar of Companies, NCT of Delhi and Haryana.

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

31.03.2015 is Rs.1,00,000/- divided into 10,000 shares of Rs.10/- each. The

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

on 31.03.2015 is Rs.1,00,000/- divided into 10,000 shares of Rs.10/- each.

6. The authorized share capital of the Transferee Company as on

31.03.2015 is Rs.1,00,00,000/- divided into 5,00,000 equity shares of Rs.10/-

each and 5,00,000 preference shares of Rs.10/- each. The issued, subscribed

and paid up share capital of the Transferee Company as on 31.03.2015 is

Rs.56,87,500/- divided into 5,00,000 equity shares of Rs.10/- each and

68,750 preference shares of Rs.10/- each.

7. Copies of the Memorandum of Association and Articles of

Association, the audited annual accounts for the year ended 31.03.2015,

alongwith the reports of the Auditors, pertaining to the Transferor Company

and the Transferee Company have been enclosed with the application that

earlier came to be filed by the Petitioner Companies, being Company

Application (Main) No.175 of 2015.

8. Learned Counsel appearing on behalf of the Petitioner Companies has

stated that no proceedings under sections 235 to 251 of the Act (or

corresponding provisions of the Companies Act, 2013) are pending against

them as on the date of institution of the present petition.

9. It has further been stated on behalf of the Petitioner Companies that

the scheme has been approved by their respective Board of Directors (BOD).

Copies of the resolutions dated 05.10.2015 of the Petitioner Companies,

whereby the scheme has been approved have been filed with the present

petition.

10. A copy of the Scheme has been enclosed with the petition and its

salient features have been incorporated in the petition. The rationale of the

Scheme as set out in detail in the Petition is reproduced as hereunder:

a) Both the Transferor Company and the Transferee Company are

closely held Private Limited Companies. Both the Transferor

Company and the Transferee Company are under the same

management and presently carrying out business in the field of

engineering goods and machined components in India or

abroad. Thus the proposed Scheme of Amalgamation would

result in business synergy and consolidation of these companies

into one large company with a stronger asset base.

b) The proposed amalgamation would enable pooling of physical,

financial and human resource of these Companies for the most

beneficial utilization of these factors in the combined entity.

c) The proposed Scheme of Amalgamation will result in usual

economies of a centralized and a large company including

elimination of duplicate work, reduction of overheads, better

and more productive utilization of human and other resource

and enhancement of overall business efficiency. It will enable

these Companies to combine their managerial and operating

strength, to build a wider capital and financial base and to

promote and secure overall growth of their businesses.

d) The said Scheme of Amalgamation will contribute in fulfilling

and furthering the objects of the Transferor and the Transferee

Companies. It will strengthen, consolidate and stabilize the

business of these Companies and will facilitate further

expansion and growth of their business. The resulting

amalgamated company will be able to participate more

vigorously and profitably in the competitive market scenario.

e) The proposed amalgamation would enhance the shareholders'

value of all the Transferor Company and the Transferee

Company.

f) The said Scheme of Amalgamation will have beneficial impact

on all the Transferor Company and the Transferee Company,

their shareholders, employees and other stakeholders and all

concerned.

11. So far as the share exchange ratio is concerned, the same has been

stated to be as follows:

52 equity shares of Rs.10/- each of the Transferee Company for every 100 equity shares of Rs.10/- each held in the Transferor Company.

12. The Petitioner Companies by way of Company Application (Main)

No. 175 of 2015 sought directions of this Court for dispensation of meetings

of the equity and preference shareholders, secured creditors and unsecured

creditors of the Petitioner Companies. This Court vide order dated

25.02.2016 dispensed with the requirement of convening meetings of the

equity and preference shareholders, secured & unsecured creditors of both

the Petitioner Companies.

13. Thereafter, the present petition came to be filed by the Petitioner

Companies. Notice in the present petition was issued to the Official

Liquidator, Regional Director and the Registrar of Companies vide order

dated 29.03.2016. Further, this Court by way of the said order directed that

the citations be published in the Delhi editions of 'Business Standard'

(English Edition) and 'Jansatta' (Hindi Edition); citations to be uploaded on

the websites of the Petitioner Companies, OL and Ministry of Corporate

Affairs.

14. An affidavit dated 26.08.2016 has been filed by the Petitioner

Companies showing service of notice upon the OL, Regional Director & the

Registrar of Companies and showing that citations were published in the said

newspapers on 12.08.2016. The said affidavit is on record.

15. Pursuant to issuance of notice, the OL filed its report dated 22.08.2016

stating that no complaint has been received from any person/party to the

proposed scheme and that the affairs of the Transferor Company do not

appear to have been conducted in a manner prejudicial to the interests of its

members or public interest.

16. Therefore, the OL is stated to have no objections if this Court were to

grant sanction to the proposed Scheme.

17. Pursuant to the notice being issued in the Petition, the Regional

Director has filed its representation/affidavit dated 26.08.2016, not raising

any objections to the grant of the proposed Scheme.

18. An affidavit dated 26.08.2016 showing that no objections have been

received by the Petitioner Companies or their counsel, from any person/party

to the proposed Scheme, has been filed by the Transferor Company and the

same is on record.

19. In view of the foregoing and in view of the approval accorded by the

shareholders and creditors of the Petitioner Companies and the

representation/affidavit filed by the Regional Director, and the report of the

OL, raising no objections to the proposed Scheme; there appears to be no

impediment to grant of sanction to the Scheme. Consequently, sanction is

hereby granted to the Scheme the provisions of section 391 to 394 of the

Act.

20. 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.

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

comply with all the provisions of the proposed scheme and, in particular,

those which are referred to hereinabove. The petitioner companies shall also

comply with the statutory requirements in accordance with law.

23. A certified copy of this order be filed with the Registrar of Companies

within 30 days from the date of receipt of the same.

24. The Petitioner Companies are directed to deposit a sum of Rs.25,000/-

with the Delhi High Court Bar Association Lawyers' Social Security and

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

25. The Petition is allowed in the above terms and is accordingly disposed

of.

SIDDHARTH MRIDUL, J JANUARY 30, 2017 sb/mk