Full Text
HIGH COURT OF DELHI
JUDGMENT
MODTECH PROJECTS (INDIA) PRIVATE LIMITED
….PETITIONER/TRANSFEROR COMPANY
AND
MODTECH MATERIAL HANDLING PROJECTS PRIVATE LIMITED
…..PETITIONER/TRANSFEREE COMPANY
Through: Mr Manoj Kumar Garg and Mr. Prem Mardi, Advocates for petitioner.
Ms Aparna Mudiam, Asst. ROC for RD.
Ms Ruchi Sindhwani, Advocate for OL.
1. The present Petition has been filed jointly, under sections 391 and 394 of the Companies Act, 1956 (hereinafter referred to as ‘the Act’) by Modtech 2016:DHC:8052-DB Projects (India) Private Limited (hereinafter referred as ‘Transferor Company’) and Modtech Material Handling Projects Private Limited (hereinafter referred as ‘Transferee Company’) seeking sanction of the Scheme of Amalgamation (hereinafter referred to as ‘the Scheme’) between the Transferor Company and the Transferee Company.
2. The Transferor Company and the Transferee Company are hereinafter, jointly referred to as ‘Petitioners’.
3. The registered offices of the Petitioners are situated at New Delhi, within the jurisdiction of this Court.
4. The Transferor Company was originally incorporated under the Act on 14.08.2000, with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi.
5. The Transferee Company was incorporated under the Act on 17.01.2006 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi.
6. The authorized share capital of the Transferor Company as on 31.03.2015 is Rs.10,00,000/-, divided into 1,00,000 Equity Shares of Rs.10/-. The issued, subscribed and paid up share capital of the Transferor Company as on 31.03.2015 is Rs.8,81,000/-, divided into 88,100 Equity Shares of Rs.10/- each.
7. The authorized share capital of the Transferee Company, as on 31.03.2015 is Rs.40,00,000/-, divided into 4,00,000 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.35,30,000/- divided into 3,53,000 Equity Shares of Rs.10/- each.
8. Copies of Memorandum of Association and Articles of Association of the Transferor Company and the Transferee Company have been filed on record. The Audited Balance Sheets, as on 31.03.2015, of the Transferor Company and the Transferee Company along with the Auditors’ Reports, have also been filed and the same are on record.
9. A copy of the Scheme has been filed on record and the salient features of the Scheme have been incorporated and set out in detail in the petition and the accompanying affidavits. It has been by the petitioners that the proposed amalgamation will inter alia, give the consolidated company better finances and facilitate adequate resource mobilization to sustain growth. It has further been stated that the proposed Scheme will result in reduction of overheads, administrative, managerial and other expenditure, and bring about operational rationalization and efficiency, organizational efficiency and optimal utilization of various resources.
10. So far as the share exchange ratio for amalgamation is concerned, the Scheme provides that, upon the Scheme finally coming into effect, the Transferee Company shall issue shares in the following manner:
11. It has been submitted that no proceedings under Sections 235 to 251 of the Act (and under the corresponding provisions of the Companies Act, 2013) are pending against either of the Petitioners.
12. The Board of Directors of the transferor and transferee companies in their separate meetings held on 20.11.2015 have unanimously approved the proposed Scheme. Copies of the Resolutions passed at the meetings of the Board of Directors of the Transferor and Transferee Companies have been placed on record.
13. The Petitioners had earlier filed an application, being Company Application (Main) No.71 of 2016 seeking directions of this Court to dispense with the requirement of convening the meetings of Equity Shareholders, Secured and Unsecured Creditors of the Petitioners to consider and if thought fit, approve, with or without modifications, the Scheme. Vide order dated 19.07.2016, this Court allowed the Application and dispensed with the requirement of convening and holding the meetings of Equity Shareholders of the Transferor Company; Equity Shareholders, Secured and Unsecured Creditors of the Transferee Company, to consider and, if thought fit, approve, with or without modification, the proposed scheme of amalgamation. The Transferor Company has no secured or unsecured creditors.
14. The Petitioners have thereafter filed the present Petition seeking sanction of the Scheme of Amalgamation. By way of order dated 27.07.2016, notice in the present Petition was issued to the Regional Director, Northern Region and the Official Liquidator. Citations were directed to be published in the Delhi Editions of newspapers, ‘Business Standard’ (English and Hindi). An affidavit dated 19.08.2016 has been filed by the petitioners showing compliance regarding publication of citations in the aforesaid newspapers on 12.08.2016.
15. Pursuant to the notices issued in the Petition, the Official Liquidator has filed a report dated 10.11.2016, wherein it has been stated that he has not received any complaint against the proposed Scheme from any person/party interested in the Scheme in any manner and that the affairs of the Transferor Company 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 Companies Act, 1956.
16. Therefore, no objection has been raised on behalf of the Official Liquidator to the grant of sanction to the Scheme.
17. In response to the notices issued in the Petition, the Regional Director, Northern Region, Ministry of Corporate Affairs, New Delhi has filed an affidavit dated 11.11.2016 stating that the Regional Director has no objection to the proposed Scheme of Amalgamation.
18. No objection has been received to the Scheme from any other party. By way of affidavit dated 08.11.2016 of Mr. Sutikshan Lai, Authorised Signatory of the Transferee Company and affidavit dated 09.11.2016 of the counsel for the petitioners, it has been averred that neither the petitioners nor their counsel have received any objection to the Scheme pursuant to the citations published in the newspapers on 12.08.2016.
19. In view of the approval accorded by the shareholders and creditors of the petitioners to the proposed Scheme and the report and affidavit filed by the Official Liquidator and the Regional Director, Northern Region, respectively, 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. Hence, sanction is hereby granted to the Scheme of Amalgamation under sections 391 and 394 of the Companies Act,
1956. The Petitioners will comply with the statutory requirements in accordance with law.
20. A certified copy of this order, sanctioning the Scheme, be filed with the ROC, within thirty (30) days of its receipt.
21. Resultantly, it is hereby directed that the Petitioners will comply with all provisions of the Scheme and, in particular, those which are referred to hereinabove.
22. 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, albeit, in accordance with law, against the concerned persons, directors and officials of the Petitioners.
23. The Transferor Company shall stand dissolved without being wound up.
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 Petitioners shall deposit a sum of Rs. 2,00,000/-, by way of costs, in the Delhi High Court Bar Association Lawyers' Social and Welfare Fund, New Delhi, within a period of two weeks from today.
26. The present petition is allowed in the aforesaid terms and disposed of accordingly.
SIDDHARTH MRIDUL, J. DECEMBER 19, 2016 dn/sb