In The Matter Of Heritage Towers Pvt. Ltd. & ORS. v. ....
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 733/2014 Reserved on 17th March, 2015 Date of pronouncement: 16th April, 2015 In the matter of The Companies Act, 1956 & the Companies Act, 2013 (to the extent applicable):
And Petition under Sections 391(2) & 394 of the Companies Act, 1956 Scheme of Amalgamation of:
Heritage Towers Private Limited Petitioner/Transferor Company No. 1 Nipun Buildwell Private Limited Petitioner/Transferor Company No. 2 Samarth Buildwell Private Limited Petitioner/Transferor Company No. 3 WITH Pashupati Towers Private Limited Petitioner/Transferee Company Through Mr. Dilip Singh, Advocate for the petitioners Mr. Atma Sah, Assistant Registrar of Companies for the Regional Director Mr. Rajiv Bahl, Advocate for the Official Liquidator SUDERSHAN KUMAR MISRA, J.
1.
This joint petition has been filed under Sections 391(2) and 394 of the Companies Act, 1956 by the petitioner companies seeking sanction of the Scheme of Amalgamation of Heritage Towers Private Limited (hereinafter referred to as the transferor company no. 1); Nipun Buildwell Private Limited (hereinafter referred to as the transferor company no. 2);
and Samarth Buildwell Private Limited (hereinafter referred to as the transferor company no. 3) with Pashupati Towers Private Limited (hereinafter referred to as the transferee company). 2.
The registered offices of the transferor and transferee companies are situated at New Delhi, within the jurisdiction of this court. 3.
The transferor company no. 1 was incorporated under the Companies Act, 1956 on 19th March, 1999 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi. 4.
The transferor company no. 2 was incorporated under the Companies Act, 1956 on 15th January, 2003 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi. 5.
The transferor company no. 3 was incorporated under the Companies Act, 1956 on 15th January, 2003 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi. 6.
The transferee company was incorporated under the Companies Act, 1956 on 19th March, 1999 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi.
7.
The present authorized share capital of the transferor company no.1 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 company is Rs.1,02,000/- divided into 10,200 equity shares of Rs.10/- each. 8.
The present authorized share capital of the transferor company no.2 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 company is Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each. 9.
The present authorized share capital of the transferor company no.3 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 company is Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each. 10.
The present authorized share capital of the transferee company 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 company is Rs.1,02,000/- divided into 10,200 equity shares of Rs.10/- each. 11.
Copies of the Memorandum and Articles of Association of the transferor and transferee companies have been filed on record with the joint application, being CA(M) 142/2014, earlier filed by the petitioners. The audited balance sheets, as on 31st March, 2013, of the transferor
and transferee companies, along with the report of the auditors, had also been filed.
12.
A copy of the Scheme of Amalgamation has been placed on record and the salient features of the Scheme have been incorporated and detailed in the petition and the accompanying affidavit. It is claimed that the proposed amalgamation would enable pooling of physical, financial and human resources of these companies for the most beneficial utilization of these factors in the combined entity. It is further claimed that the proposed amalgamation will result in usual economies of a centralized and a large company including elimination of duplicate work, reduction in overheads, better and more productive utilization of human and other resources 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.
13.
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 companies in the following ratio:
"148 equity shares of Rs.10/- each of the transferee company for every 100 equity shares of Rs.10/- each held in transferor company no. 1."
"49 equity shares of Rs.10/- each of the transferee company for every 100 equity shares of Rs.10/- each held in transferor company no. 2."
"09 equity shares of Rs.10/- each of the transferee company for every 100 equity shares of Rs.10/- each held in transferor company no. 3."
14.
It has been submitted by the petitioners that no proceedings under Sections 235 to 251 of the Companies Act, 1956 and Sections 210 to 227 of the Companies Act, 2013 are pending against the transferor and transferee companies.
15.
The Board of Directors of the transferor and transferee companies in their separate meetings held on 18th August, 2014 have unanimously approved the proposed Scheme of Amalgamation. Copies of the Resolutions passed at the meetings of the Board of Directors of the transferor and transferee companies had been placed on record in CA(M) 142/2014.
16.
The petitioner companies had earlier filed CA (M) No. 142/2014 seeking directions of this court to dispense with the requirement of convening the meetings of their equity shareholders, secured and unsecured creditors, which are statutorily required for sanction of the Scheme of Amalgamation. Vide order dated 14th October, 2014, this court allowed the application and dispensed with the requirement of convening and holding the meetings of the equity shareholders and
unsecured creditors of the transferor and transferee companies, there being no secured creditors of the petitioner companies, to consider and, if thought fit, approve, with or without modification, the proposed Scheme of Amalgamation.
17.
The petitioner companies have thereafter filed the present petition seeking sanction of the Scheme of Amalgamation. Vide order dated 25th November, 2014, notice in the petition was directed to be issued to the Regional Director, Northern Region, and the Official Liquidator. Citations were also directed to be published in 'Statesman' (English) and 'Jansatta' (Hindi) editions. Affidavit of service has been filed by the petitioners showing compliance regarding service on the Official Liquidator and the Regional Director, Northern Region and also regarding publication of citations in the aforesaid newspapers on 30th January, 2015. Copies of the newspaper clippings containing the publications have been filed along with the said affidavit.
18.
Pursuant to the notices issued, the Official Liquidator sought information from the petitioner companies. Based on the information received, the Official Liquidator has filed a report dated 13th March, 2015 wherein he has stated that he has not received any complaint against the proposed Scheme of Amalgamation from any person/party interested in the Scheme in any manner and that the affairs of the transferor companies do not appear to have been conducted in a manner
prejudicial to the interest of their members, creditors or public interest, as per second proviso of Section 394(1) of the Companies Act, 1956. 19.
In response to the notices issued in the petition, Mr. A. K. Chaturvedi, Regional Director, Northern Region, Ministry of Corporate Affairs has filed his report dated 13th March, 2015. Relying on Clause 4.15(a) of the Scheme, he has stated that, upon sanction of the Scheme of Amalgamation, all the employees of the transferor companies shall become the employees of the transferee company without any break or interruption in their services. He has further submitted that in Clause 4.16(a) of the Scheme, it has been stated that amalgamation shall be an 'amalgamation in the nature of Merger' as defined in Accounting Standard-14 issued by the Institute of Chartered Accountants of India and shall be accounted for under the 'pooling of interest' method in accordance with the said accounting standard. He further submitted that in Clause 4.18 of the Scheme, it has been stated that upon this scheme becoming effective, the transferor companies shall stand dissolved without the process of winding up.
20.
The Official Liquidator has not raised any objection to the proposed Scheme of Amalgamation. However, in Para 23 of his report, he has submitted that as per para 6(iii) of the petition, the appointed date is 1st April, 2013, but as per the Scheme of Amalgamation, the appointed date is 1st April, 2014. In response to the aforesaid observation, learned
counsel for the petitioners submitted that due to a typographical error in the petition, the appointed date of the Scheme is mentioned as 1st April, 2013 whereas it is in fact 1st April, 2014, as mentioned in the Scheme. In view thereof, the observation raised by the Official Liquidator does not subsist.
21.
No objection has been received to the Scheme of Amalgamation from any other party. The petitioner companies, in the affidavits dated 24th February, 2015 of Mr. Rakesh Singla, authorized Signatory of transferor company nos. 1 & 3 and Mr. Munish Singla, authorized signatory of transferor company no. 2 and the transferee company, have submitted that neither the petitioner companies nor their counsel have received any objection pursuant to the citations published in the newspapers on 30th January, 2015.
22.
Considering the approval accorded by the equity shareholders and creditors of the petitioner companies to the proposed Scheme of Amalgamation and the affidavits filed by the Regional Director, Northern Region, and the Official Liquidator not raising any objection to the proposed Scheme of Amalgamation, there appears to be no impediment to the grant of sanction to the Scheme of Amalgamation. Consequently, sanction is hereby granted to the Scheme of Amalgamation under Sections 391 and 394 of the Companies Act, 1956. The petitioner companies will comply with the statutory requirements in accordance with
law. Certified copy of this order be filed with the Registrar of Companies within 30 days. It is also clarified that this order will not be construed as an order granting exemption from payment of stamp duty as payable in accordance with law. Upon the sanction becoming effective from the appointed date of Amalgamation, i.e. 1st April, 2014, the transferor company nos. 1, 2 and 3 shall stand dissolved without undergoing the process of winding up.
23.
Learned counsel for the Official Liquidator prays that costs of Rs.1.5 lakhs should be paid by the petitioners keeping in view the fact that the matter has involved examination of extensive records and also prioritized hearings. Learned counsel for the petitioners states that the same is acceptable to him. Looking to the circumstances, the petitioner shall deposit a sum of Rs.1.5 lakhs by way of costs with the Common Pool Fund of the Official Liquidator within two weeks from today. 24.
The petition is allowed in the above terms.
Dasti.
SUDERSHAN KUMAR MISRA, J.
April 16, 2015