Abhilasha Buildcon Private Limited v. Jupiter Township Limited

8. The Transferor Company No.3 was originally incorporated under the Act, on 17.04.2009 with the Registrar of Companies, NCT of Delhi & Haryana.

9. The Transferor Company No.4 was originally incorporated under the Act, on 05.02.2009 with the Registrar of Companies, NCT of Delhi & Haryana.

10. The Transferor Company No.5 was originally incorporated under the Act, on 23.04.2007 with the Registrar of Companies, NCT of Delhi & Haryana.

11. The Transferor Company No.6 was originally incorporated under the Act, on 06.07.2007 with the Registrar of Companies, NCT of Delhi & Haryana.

12. The Transferor Company No.7 was originally incorporated under the Act, on 03.09.2008 with the Registrar of Companies, NCT of Delhi & Haryana.

13. The Transferor Company No.8 was originally incorporated under the Act, on 10.06.2005 with the Registrar of Companies, NCT of Delhi & Haryana.

14. The Transferor Company No.9 was originally incorporated under the Act, on 25.06.2008 with the Registrar of Companies, NCT of Delhi & Haryana.

15. The Transferor Company No.10 was originally incorporated under the Act, on 02.07.2008 with the Registrar of Companies, NCT of Delhi & Haryana.

16. The Transferor Company No.11 was originally incorporated under the Act, on 04.06.2008 with the Registrar of Companies, NCT of Delhi & Haryana.

17. The Transferor Company No.12 was originally incorporated under the Act, on 16.04.2007 with the Registrar of Companies, NCT of Delhi & Haryana.

18. The Transferor Company No.13 was originally incorporated under the Act, on 04.06.2008 with the Registrar of Companies, NCT of Delhi & Haryana.

19. The Transferor Company No.14 was originally incorporated under the Act, on 19.05.2008 with the Registrar of Companies, NCT of Delhi & Haryana.

20. The transferor company no. 15 was incorporated under the Companies Act, 1956 on 1st March, 2006 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi.

21. The transferor company no. 16 was incorporated under the Companies Act, 1956 on 15th June, 2005 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi.

22. The transferor company no. 17 was incorporated under the Companies Act, 1956 on 13th April, 2005 with the Registrar of Companies, NCT of

23. The transferor company no. 18 was incorporated under the Companies Act, 1956 on 26th July, 2006 with the Registrar of Companies, NCT of Delhi

24. The transferor company no. 19 was incorporated under the Companies Act, 1956 on 24th October, 2007 with the Registrar of Companies, NCT of

25. The transferor company no. 20 was incorporated under the Companies Act, 1956 on 11th December, 2006 with the Registrar of Companies, NCT of

26. The transferor company no. 21 was incorporated under the Companies Act, 1956 on 30th May, 2008 with the Registrar of Companies, NCT of

27. The transferor company no. 22 was incorporated under the Companies Act, 1956 on 12th April, 1996 with the Registrar of Companies, NCT of

28. The transferor company no. 23 was incorporated under the Companies Act, 1956 on 22nd January, 2007 with the Registrar of Companies, NCT of

29. The transferor company no. 24 was incorporated under the Companies Act, 1956 on 1st April, 2005 with the Registrar of Companies, NCT of Delhi

30. The transferor company no. 25 was originally incorporated under the Companies Act, 1956 on 27th January, 2005 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi under the name and style of Eldeco Ecoteck Developers Limited. The company changed its name to JMV Ecoteck Developers Limited and obtained the fresh certificate of incorporation on 23rd October, 2006.

31. The transferor company no. 26 was incorporated under the Companies Act, 1956 on 15th March, 2013 with the Registrar of Companies, NCT of

32. The transferor company no. 27 was incorporated under the Companies Act, 1956 on 6th July, 2007 with the Registrar of Companies, NCT of Delhi

33. The transferor company no. 28 was incorporated under the Companies Act, 1956 on 28th July, 2008 with the Registrar of Companies, NCT of Delhi

34. The transferor company no. 29 was incorporated under the Companies Act, 1956 on 27th June, 2008 with the Registrar of Companies, NCT of

35. The transferor company no. 30 was incorporated under the Companies Act, 1956 on 24th February, 2012 with the Registrar of Companies, NCT of

36. The transferor company no. 31 was incorporated under the Companies Act, 1956 on 24th December, 1999 with the Registrar of Companies, NCT of

37. The transferor company no. 32 was incorporated under the Companies Act, 1956 on 25th July, 2008 with the Registrar of Companies, NCT of Delhi

38. The transferor company no. 33 was incorporated under the Companies Act, 1956 on 31st October, 1990 with the Registrar of Companies, NCT of

39. The transferor company no. 34 was incorporated under the Companies Act, 1956 on 26th June, 2008 with the Registrar of Companies, NCT of

40. The transferor company no. 35 was incorporated under the Companies Act, 1956 on 15th October, 2007 with the Registrar of Companies, NCT of

41. The transferor company no. 36 was incorporated under the Companies Act, 1956 on 11th January, 2007 with the Registrar of Companies, NCT of

42. The transferor company no. 37 was incorporated under the Companies Act, 1956 on 1st March, 2006 with the Registrar of Companies, NCT of

43. The transferee company was incorporated under the Companies Act, 1956 on 3th June, 2008 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi.

44. The present authorized share capital of the transferor companies nos.1, 2, 6, 7, 8, 9, 10, 11, 13, 15, 18, 19, 20, 23, 26, 27, 28, 29, 30, 32, 34, 35, 36 & 37 are Rs.1,00,000/- each divided into 10,000 equity shares of Rs.10/each. The issued, subscribed and paid-up share capital of the companies are Rs.1,00,000/- each divided into 10,000 equity shares of Rs.10/- each.

45. The present authorized share capital of the transferor company no.3 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.5,00,000/- divided into 50,000 equity shares of Rs.10/- each.

46. The present authorized share capital of the transferor company no.4 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.5,00,000/- divided into 50,000 equity shares of Rs.10/- each.

47. The present authorized share capital of the transferor company no.5 is Rs.20,00,00,000/- divided into 2,00,00,000 equity shares of Rs.10/- each. The issued, subscribed and paid-up share capital of the company is Rs.5,00,000/- divided into 50,000 equity shares of Rs 10/-each.

48. The present authorized share capital of the transferor company no.12 is Rs.6,00,000/- divided into 60,000 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.

49. The present authorized share capital of the transferor company no.14 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.5,00,000/divided into 50,000 equity shares of Rs.10/- each.

50. The present authorized share capital of the transferor company no.16 is Rs.10,00,000/- divided into 1,00,000 equity shares of Rs.10/-each. The issued, subscribed and paid-up share capital of the company is Rs.10,00,000/- divided into 1,00,000 equity shares of Rs.10/- each.

51. The present authorized share capital of the transferor company no.17 is Rs.25,00,000/- divided into 2,50,000 equity shares of Rs.10/-each. The

52. The present authorized share capital of the transferor company no.21 is Rs.5,00,000/- divided into 50,000 equity shares of Rs.10/- each. The

53. The present authorized share capital of the transferor company no.22 is Rs.50,00,000/- divided into 5,00,000 equity shares of Rs.10/-each. The issued, subscribed and paid-up share capital of the company is Rs.9,95,000/divided into 99,500 equity shares of Rs.10/- each.

54. The present authorized share capital of the transferor company no.24 is Rs.25,00,000/- divided into 2,50,000 equity shares of Rs.10/-each. The

55. The present authorized share capital of the transferor company no.25 is Rs.1,00,00,000/- divided into 10,00,000 equity shares of Rs.10/-each. The

56. The present authorized share capital of the transferor company no.31 is Rs.10,00,000/- divided into 10,00,000 equity shares of Rs.1/- each. The issued, subscribed and paid-up share capital of the companies is Rs.1,01,632/- divided into 1,01,632 equity shares of Rs.1/- each.

57. The present authorized share capital of the transferor company no.33 is Rs.10,00,000/- divided into 1,00,000 equity shares of Rs.10/-each. The issued, subscribed and paid-up share capital of the companies is Rs.9,99,800/- divided into 99,980 equity shares of Rs.10/- each.

58. 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 present

59. It has been averred on behalf of the Petitioner Companies that there are no proceedings pending against them, under Sections 235 to 251 of the Act (including their corresponding sections of the Companies Act, 2013).

60. The Board of Directors of the Petitioner companies in their separate meetings held on 6th October, 2015 have unanimously approved the proposed Scheme of Amalgamation. Copies of the Resolutions passed at the meetings of the Board of Directors of the Petitioner companies have been placed on record.

61. The Copies of the Memorandum of Association and Articles of Association, of each of the Petitioner Companies, have been duly filed as Annexures to Company Application (M) No. 173/2015(Application for First Motion), which earlier came to be filed by the Petitioner Companies. The same are on record. The audited financial statements, as on 31st March, 2015, alongwith the auditors’ reports, pertaining to each of the Petitioner Companies have also been duly filed by the Petitioner Companies and the same are on record.

62. A copy of the Scheme has been duly placed on record and the salient features of the Scheme, have been incorporated in the scheme. It has been averred on behalf of the Petitioner Companies It is submitted by the applicants that with a view to restructure the businesses of various companies so as to reduce the entities into smaller manageable lots and to achieve synergies, diversifications, economies of scale, focused management control, cost reduction, higher net worth resulting in the increased borrowing power.

63. 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: o 139 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of ABPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.1. o 17 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of ARPPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.2. o 84 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of AAPIAHL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.3. o 117 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of AAPILL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.4. o 26 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of ARPPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.6. o 14 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of AUTDPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.7. o 445 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of BPPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.8. o 191 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of BIPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.9. o 329 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of BREPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.10. o 32 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of BTPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.11. o 29 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of CPPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.12. o 385 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of COPPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.13. o 101 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of DRL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.14. o 391 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of DRPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.15. o 149 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of ELDPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.16. o 215 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of EDPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.17. o 312 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of ERPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.18. o 29 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of EURPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.20. o 100 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of GIL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.21. o 494 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of GSFL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.22. o 27 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of HIPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.23. o 152 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of IDPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.24. o 93 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of KIPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.26. o 49 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of LIPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.27. o 230 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of MRTPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.28. o 381 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of MIPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.29. o 170 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of PRPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.30. o 785 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of RIPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.32. o 1427 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of SAPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.33. o 19 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of SRPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.35. o 582 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of VRPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.36. o 276 equity shares of Transferee Company of Rs. 10/- each fully paid up for every 100 equity shares of VARPL of Rs. 10/- each fully paid up held by the shareholders in the Transferor Company No.37. o The Net Worth of Transferor Companies No.5, 19, 25, 31 and 34 is negative so all the shareholders of each of these companies will be issued 01 share each of Transferee Company as a token.

64. To recapitulate, the Petitioner Companies had, in the earlier round, filed an application (i.e. application for the First Motion), being Company Application (M) No. 173 of 2015, whereby a prayer was sought, to dispense with the requirement of convening the meetings of the equity shareholders, secured creditors and unsecured creditors of the Petitioner Companies.

65. This Court vide order dated 10.12.2015, allowed the first motion application. The Court dispensed with the requirement of convening meetings of all the equity shareholders of Petitioner Companies and unsecured creditors of Transferor Companies Nos. 1, 2, 4, 5, 7, 9, 10, 12, 13, 14, 15, 19, 20, 22, 25, 28, 29, 34, 35 and 36. Vide the above said order dated 10.12.2015, since transferor Companies Nos. 3, 6, 8, 11, 16, 17, 18, 21, 23, 24, 26, 27, 30,31, 32, 33 & 37 have no unsecured creditors; Transferor Companies have no secured creditors; Transferee Company has no secured or unsecured creditors, the question of requirement of convening meetings for the same did not arise.

66. Pursuant to the same, the Petitioner Companies have filed the instant petition (i.e. Second Motion Petition). Notice in the present petition was issued by this Court, by way of the order dated 07.01.2016. Notice in the present petition was accepted on behalf of the Official Liquidator (OL) and the Regional Director (RD), Northern Region.

67. Furthermore, vide order of this Court dated 07.01.2016, citations were directed to be published. It has been noted that Citations were published, in Delhi Editions of the newspapers, namely, ‘Business Standard’ (English, Delhi Edition) and ‘Jansatta’ (Hindi, Delhi Edition) on 19.03.2016, in compliance with the above said order of this court dated 07.01.2016. An affidavit dated 07.04.2016 demonstrating service of the petition on the Official Liquidator, Registrar of Companies and the Regional Director, Northern Region has been filed and the same is placed on record.

68. Pursuant to the issuance of notices in the present petition, report of the Official Liquidator (OL) dated 08.07.2016 has been filed, wherein, inter alia, it has been stated that no complaint qua the Scheme, has been received from any person/party interested in the Scheme. Further, it has been stated in the said report dated 08.07.2016, that on the basis of the information supplied by the Petitioner Companies, it appears, that the affairs of the Petitioner Companies have been conducted in a manner which could not be construed as being prejudicial to either the interest of their members or the public at large.

69. In other words, it has been averred by the OL in the said report, that the affairs of the Petitioner Companies, do not fall foul of the provisions of the Second Proviso to Section 394(1) of the Act. Thus, it has been submitted on behalf of the OL, in effect, that no objection would be raised on behalf of the OL, if this Court were to sanction the Scheme.

70. Further, in response to the notices issued in the present Petition, Sh. Narendra Kumar Bhola, Regional Director, Northern Region, Ministry of Corporate Affairs, filed his affidavit on 11.07.2016 wherein, inter alia, it was stated that there is a typographical error in name of the Transferor Company No. 37 which is shown as “Vasundhra Realtors Private Limited” whereas as per Certificate of Incorporation its name is shown as “Vasundhra Realotrs Private Limited”.

71. Petitioner companies thereafter filed an application No.3095/2016 and sought to substitute the name of the Transferor Company No. 37 to “Vasundhra Realotrs Private Limited instead of “Vasundhra Realtors Private Limited”. In view of the orders being passed in the said application today, by this Court, Ms. Aparna Mudiam, Assistant ROC appearing on behalf of the RD would submit that they have no objections in the event this Court were to sanction the Scheme.

72. In view of the aforesaid, the objections raised by the Regional Director stand satisfied. Thus, it is evident that neither the Regional Director nor the Official Liquidator has any objection remaining to the grant of relief, as prayed for by the petitioner, in the present petition.

73. It has been noted that no objections have been received to the Scheme from any other party. The Petitioner Companies, vide affidavit dated 05.07.2016, have submitted that neither the Petitioner Companies nor their counsel have received any objection pursuant to the citations published in the newspapers on 19.03.2016.

74. In view of the foregoing, upon considering the approval accorded by the members and creditors of the Petitioner Companies to the proposed Scheme, and the affidavits filed by the Regional Director, Northern Region, Ministry of Corporate Affairs and the Official Liquidator attached to this Court, whereby no objections have been raised to the proposed Scheme, there appears to be no impediment to the grant of sanction to the Scheme. Consequently, sanction is hereby granted to the Scheme under sections 391 and 394 of the Act. The Petitioner Companies will however, comply with the statutory requirements, in accordance with law.

75. A certified copy of this order, sanctioning the Scheme, be filed with the ROC, within thirty (30) days of its receipt.

76. Resultantly, it is hereby directed that the Petitioner Companies will comply with all provisions of the Scheme and, in particular, those which are referred to hereinabove.

77. In any event, notwithstanding what has been stated on behalf of the Petitioner Companies hereinabove, the Transferee Company will file an undertaking with this Court, within two weeks from today, stating therein, that it will take over and defray all liabilities of the Transferor Companies. It is also made clear, that the concerned Statutory Authority will be entitled to proceed against the Transferee Companies 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 Scheme being sanctioned.

78. 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 Petitioner Companies.

79. The Transferor Companies shall stand dissolved without being wound up.

80. 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.

81. Learned counsel appearing on behalf of the Official Liquidator prays that costs of at least Rs.25,000/- may be paid by the Petitioner Companies, keeping in view the fact, that the matter called for examination of extensive records and prioritised hearings. Learned counsel appearing on behalf of the Petitioner Companies state that the same is acceptable to them.

82. In view of the foregoing, the Petitioner Companies shall deposit a sum of Rs.25,000/-, by way of costs, in Common Pool Fund of the Official Liquidator, Delhi.

83. Consequently, the petition is allowed and disposed of, in the aforesaid terms.

SIDDHARTH MRIDUL, J SEPTEMBER 30, 2016 sb/mk