Delhi High Court
Parkview Apartments Private Limited vs -- on 29 February, 2016
Author: Rajiv Shakdher
Bench: Rajiv Shakdher
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgement reserved on: 14.01.2016
Judgement delivered on: 29.02.2016
+ CO.PET. 536/2015
IN THE MATTER OF
PARKVIEW APARTMENTS PRIVATE LIMITED
..... Petitioner No. 1 /Transferor Company no.1
PARKVIEW BUILDHOME PRIVATE LIMITED
..... Petitioner No. 2 /Transferor Company no.2
PARKVIEW INFRASTRUCTURES LIMITED
..... Petitioner No.3 /Transferor Company no.3
SOLID BUILDWELL PRIVATE LIMITED
..... Petitioner No.4 /Transferor Company no.4
BABYLON BUILDERS PRIVATE LIMITED
..... Petitioner No.5 /Transferor Company no.5
BESTECH ESTATE DEVELOPERS PRIVATE LIMITED
..... Petitioner No.6 / Transferor Company no.6
NAVYUG INFRASTRUCTURE PRIVATE LIMITED
..... Petitioner No.7 /Transferor Company no.7
NIGHTINGALE PROPERTIES PRIVATE LIMITED
..... Petitioner No.8/Transferor Company no.8
WITH
BESTECH INDIA PRIVATE LIMITED
..... Petitioner no. 9/Transferee Company
Through: Mr Amit Goel, Adv. for the petitioners.
Ms Aparna Mudiam, Asstt. ROC for the RD.
CO.PET. 536/2015 Page 1 of 9
Mr Rajiv Behl, Adv. for the OL.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J
CA 101/2016 (condonation of delay)
1.This is an application filed by the Official Liquidator to seek condonation of delay of 100 days in filing the report.
2. For the reasons given therein, the delay is condoned and the application is allowed.
CO.PET. 536/20153. This is a second motion petition filed jointly by Parkview Apartments Private Limited (i.e. the transferor company no.1/petitioner no.1), Parkview Buildhome Private Limited (transferor company no.2/petitioner no. 2), Parkview Infrastructures Limited (transferor company no.3/petitioner no. 3), Solid Buildwell Private Limited (transferor company no.4/petitioner no. 4), Babylon Builders Private Limited (transferor company no.5/petitioner no. 5), Bestech Estate Developers Private Limited (transferor company no.6/petitioner no. 6), Navyug Infrastructure Private Limited (transferor company no.7/petitioner no. 7), Nightingale Properties Private Limited (transferor company no.8/petitioner no. 8) and Bestech India Private Limited (i.e. the transferee company/petitioner no.9) under Section 391 and 394 of the Companies Act (in short the 1956 Act), in connection with the Scheme of Amalgamation proposed by them (hereafter referred to as the scheme). A copy of the scheme is enclosed with the petition.
4. The transferor companies and the transferee company will hereafter be collectively referred to as the petitioners.
CO.PET. 536/2015 Page 2 of 95. The petitioners aver that the scheme aims to eliminate the duplication of work, reduction in the overheads, better and more productive utilization of human resource and enhancement of overall business efficiency. The scheme will enable consolidation of shareholdings and finances and consequently promote overall growth.
6. The scheme, according to Para 1.8, provides for the following share exchange ratio:
"a) 65 (Sixty Five) Equity Shares of Rs. 10/- each, credited as fully paid-up, of the Transferee Company for every 100 (One Hundred) Equity Shares of Rs. 10 each held in the Transferor Company-1.
b) 71 (Sixty Five) Equity Shares of Rs. 10/- each, credited as fully paid-up, of the Transferee Company for every 100 (One Hundred) Equity Shares of Rs. 10 each held in the Transferor Company-2.
c) 699 (Sixty Five) Equity Shares of Rs. 10/- each, credited as fully paid-up, of the Transferee Company for every 100 (One Hundred) Equity Shares of Rs. 10 each held in the Transferor Company-3.
d) 14 (Sixty Five) Equity Shares of Rs. 10/- each, credited as fully paid-up, of the Transferee Company for every 100 (One Hundred) Equity Shares of Rs. 10 each held in the Transferor Company-4.
e) 286 (Sixty Five) Equity Shares of Rs. 10/- each, credited as fully paid-up, of the Transferee Company for every 100 (One Hundred) Equity Shares of Rs. 10 each held in the Transferor Company-5.
f) 91 (Sixty Five) Equity Shares of Rs. 10/- each, credited as fully paid-up, of the Transferee Company for every 100 (One Hundred) Equity Shares of Rs. 10 each held in the Transferor CO.PET. 536/2015 Page 3 of 9 Company-6.
g) 01 (Sixty Five) Equity Shares of Rs. 10/- each, credited as fully paid-up, of the Transferee Company for every 100 (One Hundred) Equity Shares of Rs. 10 each held in the Transferor Company-7.
h) 58 (Sixty Five) Equity Shares of Rs. 10/- each, credited as fully paid-up, of the Transferee Company for every 100 (One Hundred) Equity Shares of Rs. 10 each held in the Transferor Company-8."
7. The registered office of the petitioners is located within the jurisdiction of this court.
8. The details with respect to the petitioners' authorised, issued, subscribed and paid up capital have been set out in paragraph 11 of the petition.
9. The details regarding the incorporation of petitioner no. 1 to 8 (i.e. the transferor companies), are given hereinbelow:
Change Date of Existing Name Former Name w.e.f.
Incorporation (Date)
1. Parkview Apartments Parth Finance Pvt. Ltd. 20.04.2004 11.08.1989 Pvt. Ltd.
2. Parkview Buildhome Pvt.
Girnar Fabtex Pvt. Ltd. 12.03.2005 20.03.2003 Ltd.
3. Parkview Infrastructures Indo Varun Hotels and 01.04.2004 19.08.1999 Ltd. Resorts Ltd.
4. Solid Buildwell Pvt.
Solid Buildwell Pvt. Ltd. N.A 08.03.2006
Ltd.
5. Babylon Builders Pvt.
Babylon Builders Pvt. Ltd N.A. 08.01.1996
Ltd.
6. Bestech Estate Developers
Dee Pee Telecom Ltd. 30.08.2012 21.02.1997
Pvt. Ltd.
7. Navyug Infrastructure Pvt. Navyug Infrastructure
N.A. 20.03.2006
Ltd. Pvt. Ltd.
8. Nightingale Properties Pvt. Nightingale Properties N.A. 15.03.1993
CO.PET. 536/2015 Page 4 of 9
Ltd. Pvt. Ltd.
10. The petitioner no.9/transferee company was incorporated on 25.05.2001, under the name and style: Bestech India Pvt. Ltd., with a Certificate of Incorporation issued by Registrar of Companies, NCT of Delhi & Haryana (in short ROC).
11. The copies of Memorandum and Articles of Association as well as the profit and loss account and the balance sheet as on 31.03.2014, have been filed by the petitioners.
12. Copies of Board of Directors' (BOD) resolution of the petitioners of even date i.e. 16.02.2015, approving the scheme, have been filed with the petition.
13. The petitioners have averred that there are no proceedings pending against them, under Section 235 to 251 of the Act.
14. The petitioners had earlier filed an application [i.e. the first motion, being: CA No. (M) 71/2015] whereby a prayer had been made, for dispensing with the requirement of convening the meetings of the shareholders of the petitioners and unsecured creditors of the transferor companies. The court further directed to lay down the procedure for convening, holding and conducting the meetings of the secured and unsecured creditors of the transferee company.
14.1 This court vide order dated 25.05.2015 having regard to the fact that all shareholders of the petitioners and all unsecured creditors of transferor companies, had given their consent to the scheme, dispensed with the requirement of convening the meetings qua the aforementioned class of persons/ entities, even while issuing directions for convening the meetings of CO.PET. 536/2015 Page 5 of 9 secured and unsecured creditors of the transferee company.
15. The petitioners aver that at the meeting convened, all four (4) secured creditors present and voting accorded their consent to the scheme. In so far as unsecured creditors are concerned, 20 from among 21 present and voting gave their consent to the scheme, which worked out to be, 95.24% (in number) and 99.96% (in value). The Chairpersons' report specifying the aforesaid has been appended along with the petition. 15.1 The copy of the resolutions passed at the respective meetings of secured and unsecured creditors of the transferee company have been placed on record along with the petition.
16. The petitioners thereafter, filed the instant petition (i.e. second motion). Notice in this petition was issued on 07.08.2015. Notice was accepted on behalf of the Official Liquidator (OL) and the Regional Director (RD). Furthermore, it was ordered that citations be published in the Delhi editions of the Statesman (English) and Veer Arjun (Hindi). 16.1 The citations were published in Delhi Editions of newspapers; The Statesman (English) and Veer Arjun (Hindi) on 26.11.2015. An affidavit dated 08.01.2016, demonstrating service of the petition on the RD and establishing publication of citation along with the newspaper extracts, has been filed by the petitioners.
17. Further, petitioners have averred by way of the aforementioned affidavit dated 08.01.2016, that subsequent to the publication of the notice in the petition, they have not received any objection or complaint qua the scheme.
18. Pursuant thereto, the RD filed its affidavit under Section 394 A of the Act. In the affidavit, the RD relied upon the general circular bearing no. 53/2011, dated 26.07.2011 and, circular bearing no. 1/2014, dated CO.PET. 536/2015 Page 6 of 9 15.01.2014.
19. Based on the aforementioned circulars, as per the affidavit of the RD, communication was sent to the ROC and the Income Tax Department (in short the I.T. Department) seeking their response to the scheme. However, no response by the I.T. Department, on this matter, has apparently been received, till date.
20. The RD adverts, that it has received information from the ROC vide communication dated 28.12.2015 which, inter alia, is indicative of the fact that no objections to the scheme have been raised, but concerns with regard to pending income tax and service tax demands qua transferee company are highlighted.
20.1 The petitioners in their rejoinder affidavit, while accepting the fact that a Service tax demand of Rs.5,07,22,710/- and, an Income tax demand of Rs.36,63,738/- is pending against transferee company, have stated that appeals have been preferred.
21. As far as the OL is concerned, his report, inter alia, states that he has not received any complaint against the proposed scheme from any interested person or party. The O.L. has also averred that on the basis of information supplied by the petitioners, it appears, the affairs of the transferor 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. In other words, affairs of the transferor companies, according to the OL, did not fall foul of the provisions of the second proviso of Section 394(1) of the Act.
22. To be noted, the scheme in clause 4 provides that all the employees of the transferor companies in service on the effective date shall become the employees of transferee company on such date without any break and CO.PET. 536/2015 Page 7 of 9 interruption in service and on the terms and conditions not in any way less favourable to them than those subsisting with reference to the transferor companies as the case may be on the said date.
23. In terms of the provisions of Section 391 and 394 of the Act, and in terms of the scheme, the entire undertaking, properties, rights and powers of the transferor companies will stand transferred to and / or vest in the transferee company without any further act or deed. Similarly, in terms of the scheme, all liabilities and duties of the transferor companies shall stand transferred to the transferee company, without any further act or deed.
24. Furthermore, as per clause 1.7 of the scheme, the transferor companies shall stand dissolved without being wound up.
25. Accordingly, in view of the approval accorded to the scheme by the shareholders and creditors of the petitioners and, given the fact, that the RD and the OL have not articulated any objections, to the scheme, in my opinion, there appears to be no impediment to the grant of sanction to the scheme. Consequently, sanction is granted to the scheme in terms of Section 391 and 394 of the Act. The petitioners will, however, comply with all statutory requirements, as mandated in law. A certified copy of the order, sanctioning the scheme, will be filed with the ROC, within thirty (30) days of its receipt.
26. Resultantly, it is directed that the petitioners will comply with all provisions of the scheme and, in particular, those which are referred to hereinabove.
27. In any event, notwithstanding what is stated by the petitioners, 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 CO.PET. 536/2015 Page 8 of 9 liabilities of the transferor companies. It is also made clear, that the concerned statutory authority will be entitled to proceed against the transferee company qua any liability which it would have fastened on to the transferor companies for the relevant period, and that, which may arise on account of the scheme being sanctioned.
28. Notwithstanding the above, if there is any deficiency found or, violation committed of qua provision of 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.
29. It is made clear, that this order will not be construed as an order granting exemption, inter alia, from: payment of stamp duty or, taxes or, any other charges, if any, 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.
30. Consequently, the petition is allowed and disposed of in the aforesaid terms.
RAJIV SHAKDHER, J FEBRUARY 29, 2016 CO.PET. 536/2015 Page 9 of 9