1 SB Company Petitions Nos.1/2012, 2/2012, 3/2012 and 4/2012 30 t”
1. S.B. Company Petition No.1/2012 Redial Trading & Investment Pvt. Ltd. Vs. None 2. S.B. Company Petition No.2/2012 Prasham Corporate Securities Vs. None 3. S.B. Company Petition No.3/2012 Green Field Securities Pvt. Ltd. Vs. None 4. S.B. Company Petition No.4/2012 Dolphin Corrior Pvt. Ltd. Vs. None DATE OF ORDER:
23. d July 2013 HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Dinesh Mehta, for the petitioner/s. Mr. K.C. Meena Official Liquidator is present in person with the counsel Ms. Madhulika Vyas Ms. Garima Chauhan for Mr. V.K. Mathur, for the UOI. <><><> BY THE COURT: These petitions, being co-related, have been considered together and are taken up for disposal by this common order. Company Petition No.1/2012 This is a petition filed by Redial Trading & Investment Pvt. Ltd., a company incorporated under the provisions of the Companies Act, 1954 [the Act of 1956] having its registered office at 12, Badal Textile Market, Pur Road, Bhilwara (transferee company) under Section 394 of the Act of 1956 for sanctioning the scheme of amalgamation under Sections 391 and 394 of the petitioner company with Prasham Corporate Securities (India) Pvt. Ltd., (transferor company No.1), Green Field Securities Pvt. Ltd. (transferor company No.2) and Dolphin Carrier Pvt. Ltd. (transferor company No.3). The transferors companies are also incorporated under the provisions of 2 SB Company Petitions Nos.1/2012, 2/2012, 3/2012 and 4/2012 the Companies Act, 1956 and are having their respective registered offices at 12, Badal Textile Market, Pur Road, Bhilwara. The petitioner company had earlier moved an application under Section 391 of the Act of 1956 being S.B. Company Application No.6/2011. By the order dated 17.11.2011, the petitioner company was ordered to convene the meeting of its equity share holders on 17.12.2011 for the purpose of considering and if thought fit, approving with or without modifications, the Scheme of Amalgamation proposed to be made between the applicant company on one hand and aforesaid three transferor companies on the other hand. The meeting was ordered to be held under the Chairmanship of the Chairman appointed by the Court. The notices of the meeting were published on 25.11.2011 in Dainik Bhaskar, Bhilwara Edition and Times of India (English), Jaipur Edition. The notices together with copy of scheme was also dispatched through speed post to each of the equity share holders of the petitioner company as per the directions of the Court. The affidavit of the Chairman dated 28.11.2011 has been filed in this regard. The meeting of the equity share holders of the petitioner transferee company in terms of the order dated 17.11.2011 was held at the registered office of the petitioner company on 17.12.2011 at 2.00 pm. The Chairman of the meeting has submitted his report pointing out that the meeting was attended in person by 6 members holding 2,48,500 shares and by proxy 2 members holding 1,51,500 shares. The requisite quorum was present and the scheme of amalgamation was read out and explained by the Chairman and the question was submitted to the equity share holders as to whether they approved 3 SB Company Petitions Nos.1/2012, 2/2012, 3/2012 and 4/2012 the scheme of amalgamation. The Chairman has pointed out that the following resolution were placed for approval: A. RESOLVED THAT the amalgamation of Redial Trading and Investment Private Limited, (Transferee Company) with Prasham Corporate Service (India) Pvt. Ltd. (Transferor Company-I), Greenfield Securities Pvt. Ltd. (Transferor Company-II), and Dolphin Carriers Pvt. Ltd. (Transferor Company-III) under the Scheme of Amalgamation between the Transferee Company and the Transferor Companies and their respective shareholders, secured and unsecured creditors, pursuant to Sections 391 to 394 and other applicable provisions, if any of the Companies Act, 1956; (as amended upto date) and as placed before the meeting and duly initiated by the Chairman of the meeting for the purpose of identification, to be effective from April 1, 2011 be and is hereby approved subject to the said Scheme of Amalgamation being approved by the Honble High Court of Judicature at Jodhpur under Section 391 to 394 of the Companies Act, 1956. B. RESOLVED FURTHER THAT the Board of Directors (which includes any Committee thereof) of the Applicant Company, be and is hereby authorized to do all such acts, deeds, matters and things as are considered requisite or necessary to effectively implement the amalgamation as embodied in the Scheme and to accept such modifications and/or conditions, if any, which may be required and/or imposed by the Honble High Court of Judicature at Jodhpur and/or by any other authority, while sanctioning the amalgamation as embodied in the Scheme. The Chairman has further pointed out that 100% equity share holders present in person or proxy voted in favour of the resolution and no equity share holder objected in any manner whatsoever to the scheme of amalgamation. After the holding of the meeting and submission of the report, the company application No.6/2011 was disposed of on 27.03.2012. Company Petition Nos.2/2012, 3/2013 & 3/2012 These petitions have been filed by the respective transferor companies namely, Prasham Corporate Securities (India) Pvt. Ltd., (transferor company No.1) [CP No.2/2012], Green Field Securities Pvt. Ltd. (transferor company No.2) [CP No.3/2012], and Dolphin Carrier Pvt. Ltd. (transferor company No.3) [CP No.4/2012]. As noticed, these transferors companies are also incorporated under the provisions of the Companies Act, 1956 and are having 4 SB Company Petitions Nos.1/2012, 2/2012, 3/2012 and 4/2012 their respective registered offices at 12, Badal Textile Market, Pur Road, Bhilwara. These companies had also earlier moved the applications under Section 391 of the Act of 1956 being S.B.Company Application Nos.9/2011, 8/2011 and 7/2011 respectively. By the similar nature order dated 17.11.2011, the respective companies were ordered to convene the requisite meeting on 17.12.2011 for the purpose of considering the above-referred scheme of amalgamation. The meetings were ordered to be held under the respective Chairpersons appointed by the Court. The notices of the meetings were duly published and sent to the respective shareholders as per the directions of the Court. The affidavits of respective Chairpersons have been placed on record. The requisite meetings of equity shareholders of each of these companies in terms of the order dated 17.11.2011 were held on 17.12.2011. The respective Chairpersons have filed their report pointing out the attendance of the meeting by the requisite quorum and scheme of amalgamation having been read out and, thereafter, the resolutions in the same lines, as noticed hereinbefore, having been adopted without any objection in any manner. After holding of the requisite meetings and submission of the reports, the above- mentioned company applications too were disposed of on 27.03.2012. Now, these companies have filed the present petitions for sanctioning the aforesaid scheme of amalgamation with the petitioner of Company Petition No.1/2012. Upon filing of these petitions seeking sanction of scheme of amalgamation notices were ordered to be issued on 5 SB Company Petitions Nos.1/2012, 2/2012, 3/2012 and 4/2012 27.03.2012 and were ordered to be published in a newspaper having wide circulation in the area where the registered office/s of the companies is situated; and in one English newspaper having wide circulation in the State of Rajasthan. Notices were issued to the Regional Director, Ministry of Company Affairs, North-Western Region, Ahemdabad for the report. The learned Official Liquidator appearing in these matters moved an application (IA No.12116/2012) in Company Petition No.2/2012 for engagement of Chartered Accountant and Advocate. In the application so moved, the Official Liquidator was permitted to take services of Mr. Ankur Soni, CA, 280-281, Manji Ka Hatha, Jodhpur and the Oficial Liquidator was also permitted to take services of Ms. Madhulika Vyas, Advocate. Upon submission of the report by the Chartered Accountant indicating slight inconsistency regarding share-swap ratio, the transferee and the transferor companies proposed an amended amalgamation scheme and the same was submitted before the Court. The affidavit of share holders of the companies were also filed. The submission as made by the respective companies in IA Nos. 122/2013, 123/2013, 124/2013 and 125/2013 were considered in the order dated 05.02.2013; and after noticing that the Official Liquidator had no objection in permitting the companies to proceed with the amended scheme, the applications were allowed and the scheme as earlier approved was permitted to be amended with the amendments as approved in the respective meetings. It may be noticed that the slight inconsistencies noticed by the Chartered Accountant after examination of the accounts had been that while calculating NAV, the number of equity shares in Dolphin 6 SB Company Petitions Nos.1/2012, 2/2012, 3/2012 and 4/2012 Carrier Pvt. Ltd. should have been taken as 2,50,000 shares and not 2,80,000 shares and similarly, in case of Greenfield Security Pvt. Ltd., the NAV had been calculated while taking the number of equity shares as 2,50,000 instead of 2,00,000 shares. As a result of this exchange ratio stood effected. It has been resolved by the concerned companies in the meeting of the Board of Directors to substitute earlier proposed paragraph 9(a)(ii) and 9(a)(iii) of the amalgamation scheme by the following:
7. That in view of the above Resolution dated 4/1/2013, the Scheme of Amalgamation particularly para 9(a)(ii) and 9(a)(iii) of the Scheme be substituted by the following paragraph: - (9)(a)(ii) Issue and allot at par 3 (Three) Equity Shares of the face value of Rs.10 each, credited as fully paid up in the Share Capital of the Transferee Company, to the Shareholder of the 2nd Transferor Company i.e. Greenfield Securities Pvt. Ltd. for every 2 (Two) Equity Shares of the face value of Rs.10/- each fully paid held by the said share holders in the 2nd Transferor Company. (9)(a)(iii) Issue and allot at par 28(Twenty Eight) Equity Shares of the face value of Rs. 10 each, credited as fully paid up in the Share Capital of the Transferee Company, to the Shareholder of the 3rd Transferor Company i.e. Dolphin Carrier Pvt. Ltd. for every 25 (Twenty Five) Equity Shares of the face value of Rs.10/- each fully paid held by the said shareholders in the 3rd Transferor Company. It was also resolved that the period for taking effective steps be extended until 30.09.2013 and the definition of appointed date be substituted as 01.04.2012 in place of 01.04.2011. It has also been pointed out that the Board of Directors of the concerned companies were duly authorized by the share holders in the resolution dated 17.12.2011 to carry out procedural amendments in the scheme to meet with the exigency. The draft of the amended scheme of amalgamation, to be considered for sanction by the Court, has been placed on record. 7 SB Company Petitions Nos.1/2012, 2/2012, 3/2012 and 4/2012 It may be observed that the Regional Director, North Western Region, Ministry of Corporate Affairs has also stated the objections in the scheme essentially as against the proposal for adjustment and credit of excess or deficit remaining after recording the entries for the assets and liabilities of the demerged undertakings to the Share Premium Account and/or Profit & Loss account. The Regional Director has also pointed out that the clause of the amalgamation scheme as regards maintaining of the accounts was not referring to the compliance of the specific requirements of Accounting Standard, i.e., AS-14 read with Section 211 (3A) of the Companies Act. In this regard, the learned counsel for the petitioner submits that in order to meet with such objections, clause 11 of Part V as occurring in the originally proposed scheme has been duly altered and the newly proposed clause 11 meets with the suggestion as made and objections as raised by the Regional Director. Clause 11 in the amended scheme reads as under: - 11.a. Upon the coming into effect of this Scheme and with effect from the Appointed Date, for the purpose of accounting for and dealing with the value of the assets and liabilities of the Transferor Companies in the books of the Transferee Company, the fair value of the assets and liabilities of the Transferor Companies shall be determined as of the Appointed Date, and accounted appropriately in accordance with the mandate of As-14 read with Section 211 (3A) of the Companies Act, 1956. b. Particularly, any excess/shortfall of the fair value of the net assets (determined as per sub-clause (a) above) of the Transferor Company shall be accounted for and dealt within the books of the Transferee Company by way of creating a separate reserve in accordance with the prescription of AS-14. c. If considered appropriate for the purpose of application of uniform accounting methods and policies between the Transferor Company and the Transferee Company, the Transferee Company may make suitable adjustments and reflect the effect thereof in the General Reserve of the Transferee Company. As noticed, the affidavits of all the concerned share holders have also been filed. It may also be observed that the Regional 8 SB Company Petitions Nos.1/2012, 2/2012, 3/2012 and 4/2012 Director has indicated a doubt on the validity of the scheme with the passage of time. In this regard, suffice it to observe that as per the resolutions duly taken, the period for taking effective steps has been extended with the consent of all until 30.09.2013 and the definition of appointed date substituted as 01.04.2012. After having heard the learned counsel for the parties and having perused the material placed on record, this Court is satisfied that the objections, whatever, as stated by the Chartered Accountant in his report and by the Regional Director have been duly taken care of and defects/deficiencies have been duly cured/removed. Therefore, it appears just and proper to sanction the scheme of amalgamation under Section 391-394 of the Companies Act, 1956. The approved scheme shall be the one that has been filed in this Court on 16.02.2013. The scheme so approved is declared to be binding on all the share holders and creditors of the transferee company as also on the transferor companies. Needless to observe that sanctioning of the scheme would not absolve any of the parties from any existing legal liability or the liability arising in future with reference to the conduct of the company/companies concerned. The order in the prescribed Form No.42 be issued separately by the Registrar alongwith the schedules as per Rules 81 and 84 of the Companies (Court) Rules, 1959. The effective date for the purpose of approved scheme for amalgamation is fixed to be 31.03.2013. The transferor companies shall stand dissolved from that date without winding up in terms of Section 394(1)(iv) of the Companies Act, 1956. The companies shall file with the Registrar of the Companies, certified copy of this order within 14 days. 9 SB Company Petitions Nos.1/2012, 2/2012, 3/2012 and 4/2012 The petitions stand disposed of accordingly. A copy of this order be placed on the record of each of these petitions. (DINESH MAHESHWARI),J.
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