Karnataka High Court
Igs Imaging Services (India) Private ... vs Nil on 11 March, 2011
Author: Aravind Kumar
Bench: Aravind Kumar
to BETWEEN: COMPANY PETITION No.242/2010: ENCORA TECHNOLOGIES PRIVATE LIMITED, iIefg(I Regd. Office at nO.30; 7"='= Indecomm House, Laskar Hosur Road, Adugodi, Bangalore. I' '*.'iI,af*T_$ETIT1ONERy (By Advocate Sri.Saji P Joha s§3IIega1xWl" TTTLI L'»:--_ ';II( (RESPONDENTS
(Advocate Sri;KuS,Mahade9ani&(V.Jayaram for OL) (Advocate Sri.Ambaji Rab Majxe; CGC for ROC) BETWEEN: _i coMTAHY5TETITIofi?N§f243J2o10:
CONTORMIA SQfiTWAgE LABS PRIVATE LIMITED, Regfl, Office at AC3 flower, fim Floor, No§32, Residency Road, Banga1¢re;.V; E_'# .. PETITIONER §*(By Advooata Sri.Saji P John SPJ Legal) l_"§w€L4y,';~( .. RESPONDENTS ((Ad§ocate Sri.K.S.Mahadevan & V.Jayaram for OL) (Advocate Sri.Ambaji Rao Majre, CGC for ROC) BETWEEN:
COMPANY PETITION No.240/2010:
BRAINVISA TECHNOLOGIES PRIVATE V. Regd. Office at Divyashree Chambers; ''"*--° ' T* Floor, 'A' Wing, "r No.11, O'Shaugnessy Road,,e_ Shanti Nagar, Bangalore.g (By Advocate Sri.Seji P John SP$I@egal}hVV mggz , ,sf¢_2_ {:«H_VehEs9oNDENTs (Advocate Sri.Kf§;Mehéfle§éfine2V.Jayaram for CL) (Advocate Sri.Amhaji.Rao Maj:erFCGC for ROC) These gcampany "Petitions are filed under Secs.391: to ;394 _of :the gdompanies Act,1956 to sanction the Spheme of Amalgamation Annexure~A in the gpetitionsfi so _as-- to be binding on the Petitioners C5h§anYw hits shareholders, creditors and also on the other Transferor Companies and the TransfefeeA_ Compehyk' and its shareholders and creditorsaand-etc;
h" These Petitions are coming on for Orders this 'day, :he*c5u:t made the following:
0 R D E R S ih all these petitions, petitioners are Zseeking sanctioning the Scheme of Amalgamation as h"fier AnnexurenA and as such all these petitions are gfwe h",RET;T:oNtRV 6 3, Transferor Company' No.1 was ifioo:§otated°d¢n 11.6.2003 as per the prosisigns of tee iompaaiess Act,1956, with the Registrar" §£s"s§@§§n§és_ éi"
Bangalore. The said oofipangsis.prioatiLy engaged in the business _of ptoyidingiibfisiaess process outsourced servioes7pa;tiefilasiy in the field of mortgage and, banking .g§§y:£¢g iificluding imaging product saies*iandg€set§ieesf"wdocument management services and i§so§fi§£;a5 teohnology products and servioesd'D Tier Efiemoraaddm and Articles of Association ofHtheVsaid company is at Annexure-B to COP 241/Zblég Jfiegistered office of the said _. comfiaay' is "situated at No.354, 14"' Cross, CMH iRoad,dfindiranagar, Bangalore-38. The authorized dsha;e""7eafiital of the said company is at Rs';-41o,,.§3c,,iA¢:c,ooc-/----» divided into 1,oo,oo,ooo/- d=equityN: shares of Rs.l0/-- each and issued, idsufissribed and paid up share capital R;s.8,22,73,700/- of 82,27,370 equity shares of u"Rs.lO/-- each. Transferor Company No.1 has produced %%//M. the balance sheet as certified by. 3__the. ;"--3=;,u"d_.itors upto 31.3.2010. L" " T I
4. Transferor Company No'-i2 'ipetitfiofzer in * COP 242/2010 was incorporated" on ffv$;_:9:¢_?0C§§4.Viunder the provisions of the Covfiapxaniesii under the name and style of x"MEéiTos frscnmotoezzs PRIVATE LTD." with the Regiisttra-raiiii'of__:C--om;$anies, Bangalore, Karnataka and was_...su_bvsequent'lyigzhanged to ENCORA TECHNOLOGIES saivirm nib} w e,f, 26.4.2007 and it is engaged software development and t.oVVVinanage software products life eyoiles Memorandum and Articles of Association "of [the Vdompany which is at Annexure-B "*.__tO The registered office of the situated at No.30, Indecomm House, igaskariv ' Road, Adugodi, Bangalore--3O . The
--V autiho.r'i;e'dV share capital of the company is , OVVC3, 000/" made up of 20, 000 equity shares of .i tilt')/~ each and issued, subscribed and paid up "share capital is of Rs,l,9'7,990/==~= of l9,7'99 equity fig, said 'company is located at ACR Tower, shares of Rs.l0/=-~ each' Trasferozijf'Comy:¥ei;y.V_"'*.No'_.2 has produced the balance Auditors upto 31§3.2o1o. I it 1 0 0 V 0 0
5. The Transferor Corr:}$_a--:rly in COP No.243/2010 iinjcoriporated on 26.7.2007 under p'ro§.r'.il's:';i,o.lns:.of Companies Act,l956 with the of Companies, Bangalore, Karnataka"'n:12de«;;fs._yth.e.._name and style of coNFoRM:a,veoE§fiARe;_iaBSeiyelyéfm LTD. and it is engaged software development and as per the Memorandum and produced along with COP VNo.2¥1a'3/V_20»1dC--- Aa'LtV"'1i.\.nnexure--B. Registered office 4th Fvlioor 32 , Residency Road, Bangalore--25 . fshare capital of the said company is _« Rs.'.4i,.0'0a,,00V0/~ made up of 10,000 equity shares of each and issued, subscribed and paid up V' 0, share capital as on 31.3.2010 is Rs.l,00,000/~ of 10,000 shares of Rs.l0/«~ each. Transferor Company E My/,,., "r¥£7I.'&r.
9 No.3 has produced the balance sheet as certified by the Auditors upto 31.3.2010.
6. The Board of Directors of the $ransieror.and Transferee Companies have approved and adopted the scheme of amalgamation at their meetings held on0 7.10.2010 and passeds'ap resolutiofihiigi the said effect subject to the conrirmation of this court. The said resolutions ipassedlrhy the transferor companies is, at whnneanreeK00in0 the respective petitions,{l §ha.extract or the board resolutions of the trafisfieree pfimpany is produced along with COP iNo,240r2QlD»"att_Annexure--K. The Board of Directorshaveitnnaninously resolved. and. approved the draft sohehe of amalgamation whereunder it has tagreed to merge with the transferee company. It iEisl_thereafter; transferee company has filed COP 240[20lO0hefore this court to accord sanction of °, the scheme of amalgamation.
23000 The transferee company (petitioner in CO? 0V"240/2010) had filed CA 896 of 2010 and transferor kw companies' Accordingly, Chartered eAccountants have filed report which is enclosed to the report of the CL. OL has filed reports statihg, that report submitted by the Chartered s§c¢u§t§n£s"M/s Kushal & Assts., it has been"roticefihhyxthemgthatt affairs of the transferor companies do net appear to have been conducted in a manner preffidicial to the interests of hits ;mem§e£s_ or 'to ithe public. Registrar of CompaniesK§n'Karnataka on behalf of the Regional iDirectoraifgi#%§try of Corporate Affairs, Chennai has filed his report """ "afia;:fi$s* magei thel following observations which:VV"rea_ds _"3.lV "As per clause 3(c) of the Scheme, 99% g:of.the share capital of the transferee and all "transferor*"companies are held inter--alia by v_ two.fereign entities, the transferee company _"pisp required to comply with the applicable '<.,pr5v;s:sns of FEMA and FEM Regulations for V issue of shares to those foreign entities. 3r2 In respect of change of name proposed ~p in the scheme vide clause 12, the company has 'fto comply with Section 20/21 of the Companies " Act,l956 and .Applicant/Petition needs to submit esforms 'A and 18 through MCA~21 portal. e 27 3.3 There is also a proposal for consolidation of share capital in the scheme vide clause 10.1 wherein it is stated. that since 99% of the share capital fof the Transferee Company and th§"~_¢gansferor companies are held by Indecomm Global Setvices (Mauritius) Private Limitedx» and, «Indeeomm Acquisition Corporation "BVI, £whighv.are; thefi subsidiaries of Indeqomm»yCorporation,#;Cyman~ Island, upon the scheme becoming effective and after allotment of share in terms of clause 5 of this scheme, 'the_ face 'value 'es equity shares of Transferee, Company E shall be increased toW_Rs,1OfOfi0f%. and" the existing equity capitalm be; consolidated into that effect and the new shares shall be issued by the transferee company shall be increased to Rs.l0,0GQf_ iandufthe" existing equity share capital be consolidated into that effect and the be issued by the Transferee Companytu ySince the consolidation of peid--ufi share cafiital is of the same class, the_-transferee" company has to follow the compliance", of _,3ec.94 of the Companies Act=.,l956".'-- ' _{3;4 The Scheme of Amalgamation does not have 'ag_ specific"l clause in respect of share 3 application money pending allotment in the "LTransferor Company No.1."
Suhfiect to these observations made by the Regional l'.o*,Direotor through Registrar of Companies, he has "orequesteé for sanctioning of the scheme. 35$' with Seo.94 of the Companies Act,l956 for consolidation. of share capital in. the eoheme as per clause 10.19 ihe transferee companf has also undertaken to return/refund fa'V»QsnmE*u¥of Rs.7l,68,460/- received by the transferorflcompanyg No.1 from Indecomm Globair:eervice%»_{ManritinsfA Pvt. Ltd. whereunder lite had préiittéd' towards application moneyf throughl remittance* of foreign involved remittancen oni State" gank of India, Industrial .H@§ing§a§ff ifiranchyi on 26.3.2005 (Rs . 43, 3. .' 2005 Rs . 28, 00, 160/ -) within iiii "a-m§a§E§a 'oft dd Wdays from the date of sanctionc:offitthekpschene by this court after obtainindVnecessa:§"approval from the RBI. ill; The.fiaterial on record disclose that all the four ooepanies have been promoted with the same objectfl '" Board of Directors of the respective hicompanies are of the opinion that in order to 7 ensnre better utilization of infra~structural umfacilities and to ensure better turn over and %/M,,., profits to the transferee company and in order to ensure profitability and operational g_synergy scheme in question has been formulated, for amalgamation and it would be for theghenetit of all the companies. In "fact,, the _transfiereeu company as per the Memorandufi and wArticles_ of Association at Annexure*éiW0uld,refiect that it is engaged in the business at designing, development, manufacture, maintainfhgfiartetkg'gvaluate, train, benchmark, adsiseg consul£?ibug} sell, distribute, trade, deal" in ,imp§rt_ and «export, lease, hire, educate in india of-abraaa in computer software, firmwgfié, intagagt technologies, through internet medium, 4"datai: processing, storage, retrieval, "gdistance« learning, data communication, website '_designingfa_eécommerce, for various applications, coyeringd3"educational, commercial, industrial, dascientific, research, agricultural, medical dgdefence and other related areas which are also ihaims and objects of the transferor companies. go I
12. Material on record would also disclose that transferee company has convened Board at fiirectors meeting and the scheme of amalgamationddisd also approved as also by V"respective"f_transfierorfi companies. The material oh gegora exec discloses that all the four companies have conveaed meetings as required under Sec.39l or the dompanies Act and meetings required to he Esnaéaea finder Seo.39l of the Act haygiP§enidispense§igith by order of this court and Tthfisr:statutor§Awrequirement is duly complied"aith? "hhditors report in so far as the transteror companies discloses that the affairs of the company are not done in any manner prejudicial h%_ton the a;nté£ese' of the share-holders or the i_puhlicLJocUlnspite of publication of notices of hearing. ofid these petitions, none of the share~ Vmholders; creditors; employees or any other person wior_:persons have appeared before this court to R"--; oppose the scheme of amalgamation. The OL has 6%/,t ' W
14. All the employees of the transferer companies wherever applicable in service on the eiffective date shall become employees of the ".t'ra;z1:aferee company on such date without interruption in the servicfe""o*r. in termsng abndhfl conditions not less fa?«¢{:ré1b1é'* '~:ha1j:"~..V'Vthose A subsisting with referepfiebe tot 2,Vt_he';rV'concerned transferor company ofif«'Vt'heV: transferor have appeared before': to oppose the scheme of Thus, the of the transferor compar;ti'es"e.ai';e care and the scheme do notx".contra{re.hse the laws in this regard. the"'~sVhare:~-holders of both the companies for approval of the scheme and 'hhsfivaving dispensed with holding of the .V the share--holders and creditors, of the sh.are-holders and creditors have ai-Lshohhbeen duly taken care of.
3 i I») .a.)
16. Though the report of the Regional Director filed through Registrar of Companies has made certain observations for compliance it":V'ivs"L'«.V§i'o'ticed that transferee company has undertLaL:3~;;'en-.s:iVts'o"l with the said observations'"'m'ade xR'egistVrars..' of Companies, by filing on" J & 7.3.2o11,anc1 this any 'good ground to with--ha*;l_.d oitiitheii scheme or refuse to sanctiohi As the share-
holders and they have 'this court is of the not be open for this courtllto over the prudence exercised by the share:-h.ol'ders who have thought over while x"«--._Aapf>._ro*«j-2'-,ngA theificzheme of Amalgamation and as such of the considered View that Scheme o£.__ixma3...o9a';nation proposed by these companies are to be "sVa_E.1ct ioned/approved. Hence I pass the V."x_AA£.ol4l'owing: % /..
fly» 25
(iv) The scheme is hereby sanctioned subject to the petitionermcompany complying "with the observations made by the Recistrar of Companies and as undertaken"-«'.__i:>yfit'R uV:L._1V;s Affidavits of undertaking dtrd3,$;i0ii and? 7.3.2011 same _shai1xc§e §;§dengadcfiV_the transferee comfiaefi and their snareehoiders and creditors.
(v) Transferee fi¢¢mp$n§: snaiid serve a copy of this,erder on Regisrrar as Companies within 30d §a§s3 f£§fi"_§hée date of receipt of i"cer£iried'駧y of Ehis order.
ih_ terms for =enéi,§$ove order and. subject to obseryations emadedrnereinabove and subject to ie<,Tran§fieree éompahy complying its undertaking, ' these petitions stand disposed of, fififfm Eeéss {f"R/150311