Kishanpura Hotels Private ... vs Praraj Enterprises Private ...
2017 Latest Caselaw 85 Del

            IN THE HIGH COURT OF DELHI AT NEW DELHI


                                        Judgment reserved on: 02.12.2016
                                     Judgment pronounced on: 06.01.2017

CO.PET. 635/2016

IN THE MATTER OF:-

KISHANPURA HOTELS PRIVATE LIMITED
                                          ...Petitioner/ Demerged Company

                                  WITH

PRARAJ ENTERPRISES PRIVATE LIMITED
                                            ...Petitioner/Resultant company

                               Through:     Mr. Rajeev K. Goel, Advocate
                                            for Petitioner Companies.

                                            Ms. Aparna Mudiam, Asst.
                                            ROC for the RD


CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL


                            JUDGMENT

SIDDHARTH MRIDUL, J.

1. The present Petition has been filed jointly by Kishanpura Hotels

Private Limited (hereinafter referred to as 'Demerged Company') and Praraj

Enterprises Private Limited (hereinafter referred to as 'Resultant company')

under Sections 391(2), 394, and Sections 100 to 104 of the Companies Act,

1956 (hereinafter referred to as 'the Act') for approval of the Scheme of

Arrangement (hereinafter referred to as 'the Scheme') between the

Demerged Company and the Resultant company.

2. The Demerged Company and the Resultant Company have been

hereinafter jointly referred to as 'the 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 Demerged Company was incorporated under the Act on

22.08.1988 with the Registrar of Companies, Delhi & Haryana at New

Delhi.

5. The Resultant Company was incorporated under the Companies Act,

2013 on 07.10.2015 with the Registrar of Companies, Delhi & Haryana at

New Delhi.

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

31.03.2015 is, Rs.2,50,00,000/-, divided into 2,50,000 Equity Shares of

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

Demerged Company is, Rs.2,50,00,000/-, divided into 2,50,000 Equity

Shares of Rs.100/- each.

7. The present authorized share capital of the Resultant Company is

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

present issued, subscribed and paid-up share capital of the Resultant

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

each.

8. It has been stated on behalf of the Petitioner Companies that there are

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

and/or under their corresponding sections of the Companies Act, 2013.

9. It has been further stated 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

16.11.2015 have been filed and the same are on record.

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

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

to Company Application (Main) No. 78 of 2016, which earlier came to be

filed by the Petitioner Companies. The same are on record. The audited

financial statements, as on 31.03.2015, along with the auditor's report,

pertaining to the Demerged Company, have also been duly filed by

Company and the same are on record. It has been submitted on behalf of the

Petitioner Companies that the Resultant Company has been incorporated on

7th October, 2015, for the purpose of the De-merger and yet to prepare its

first audited accounts.

11. A copy of the Scheme of Arrangement 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 de-merger will enable the Demerged and Resulting

Companies to decide on the financial and other resources suitable for their

respective businesses; it will provide scope for independent expansion

without committing the existing organization in its entirety; the De-merger

will have beneficial impact on the Demerged and the Resulting Companies,

their employees, shareholders and other stakeholders and all concerned.

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

filed an application, being Company Application (Main) No. 78 of 2016,

whereby a prayer was sought, seeking directions of this court to dispense

with the requirement of convening the meeting of the Shareholders and

Unsecured Creditors of the Demerged Company and Shareholders of the

Resultant company.

13. Further, this Court, by way of its order dated 19.07.2016, dispensed

with the convening of meetings of Shareholders and Unsecured Creditors of

the Demerged Company and Shareholders of the Resultant Company.

14. Pursuant to the same, the Petitioner Companies have filed the present

Petition. Notice in this Petition was issued by this Court, by way of order

dated 01.08.2016. Notice in the present petition was accepted on behalf of

the Regional Director (RD), Northern Region.

15. Furthermore, vide order of this Court dated 01.08.2016, citations were

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

29.08.2016, in Delhi Editions (Hindi as well as English editions) of the

newspaper, namely, 'Business Standard', in compliance with the order of

this court dated 01.08.2016. An affidavit dated 22.09.2016 demonstrating

service of the Petition on the Registrar of Companies and the Regional

Director, Northern Region as well as publication of citations in the

newspapers has been filed and the same is on record.

16. Further, in response to the notices issued in the Petition, the Regional

Director, Northern Region, Ministry of Corporate Affairs, filed his affidavit

dated 30.11.2016 wherein, inter alia, it has been stated that he has no

objection to the sanction of the Scheme subject to the observations made in

paragraph no. 8 of the said affidavit. The said paragraph has been extracted

hereinbelow:

"That the Deponent states that the Petitioner Companies have vide para 35 of the reply stated that the present authorized capital of the Resultant Company is not sufficient to accommodate issue of new shares to the members of the Demerged Company on Demerger. However, in terms of the

provisions of Para 2.3.6 of the Scheme of Arrangement, the Resultant Company shall increase/modify its Authorized Share Capital for implementing the terms of the Scheme, to the extent necessary.

In this regard, the Petitioner Resultant Company may be directed to comply with the applicable provisions of the Companies Act, 2013 for increase in the Authorized capital of the Company."

17. Learned counsel appearing on behalf of the Petitioner Companies

undertakes to comply with the applicable provisions under the Companies

Act, 2013 for the increase in the authorized share capital of the Resultant

Company.

18. In view of the foregoing, Ms. Aparna Mudiam, Assistant ROC

appearing on behalf of the Regional Director, states that no further

objections remain to the grant of sanction to the Scheme.

19. The Petitioner Companies, vide affidavit dated 26.11.2016, have

submitted that neither the Petitioner Companies nor their counsel have

received any objection pursuant to the citations published in the newspapers

on 29.08.2016.

20. In view of the foregoing and upon considering the approval accorded

by the members and creditors of the Petitioner Companies to the Scheme;

the affidavit filed by the Regional Director, Northern Region, Ministry, of

Corporate Affairs; and the circumstance that the objection raised in the

affidavit of the Regional Director has been satisfied, there appears to be no

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

is hereby granted to the Scheme under section 391(2) and 394; 100 to 104 of

the Companies Act, 1956. The Petitioner Companies will however, comply

with the statutory requirements in accordance with law.

21. A certified copy of the order, sanctioning the scheme, be filed with the

ROC within thirty (30) day of its receipt.

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

comply with all the provisions of the Scheme.

23. 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 against, persons, directors and officials of the petitioner

companies.

24. 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.

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

of costs with the Delhi High Court Bar Association Lawyers Social Security

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

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

accordingly disposed of.

SIDDHARTH MRIDUL, J JANUARY 06, 2017 sb/dn/mk