Gujarat High Court
Alonza Infra And Management Pvt. Ltd vs Respondent(S) on 12 August, 2016
Author: R.M.Chhaya
Bench: R.M.Chhaya
O/COMP/171/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY PETITION NO. 171 of 2016
In
COMPANY APPLICATION NO. 150 of 2016
With
COMPANY PETITION NO. 172 of 2016
In
COMPANY APPLICATION NO. 149 of 2016
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ALONZA INFRA AND MANAGEMENT PVT. LTD.....Petitioner(s)
Versus
.....Respondent(s)
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Appearance:
MRS SWATI SOPARKAR, ADVOCATE for the Petitioner(s) No. 1
MR DEVANG VYAS, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 12/08/2016
COMMON ORAL ORDER
1. These are the petitions filed by two companies viz. Alonza Infra and Management Private Limited and Amigos Finserve Private Limited, for the purpose of obtaining the sanction of this court to a Scheme of Amalgamation of Alonza Infra and Management Private Limited, the Transferor Company with Amigos Finserve Private Limited, the Transferee Company; proposed under section 391 to 394 of the Companies Act, 1956.
2. It has been submitted that both these companies belong to the same group of management. The Board of Directors of these Companies thought it appropriate to amalgamate them for synergic benefits. It is envisaged Page 1 of 8 HC-NIC Page 1 of 8 Created On Sat Aug 13 04:43:40 IST 2016 O/COMP/171/2016 ORDER that proposed amalgamation will result into consolidation of resources and optimum utilization of the same would be advantageous to the stakeholders of the company. Amalgamation shall be beneficial from financial as well as administrative perspective. The petitions provide the details of the benefits envisaged out of the proposed Scheme.
3. It has been submitted that vide orders dated 18th April 2016 passed in Co. Applications No. 149 and 150 of 2016, the meetings of the Equity Shareholders and Unsecured Creditors of the Transferor Company were dispensed with in view of the written consent letters from all of them, approving the proposed scheme, being placed on record. There are no Secured Creditors of the company. In case of the Transferee Company, the meeting of the Equity Shareholders of the Transferee Company was dispensed with in view of the written consent letters from all of them, approving the proposed scheme, being placed on record. There are no Secured and/or Unsecured Creditors of the Transferee Company.
4. The substantive petitions for the sanction of the scheme were filed by these companies which were admitted on 3rd May 2016. The notice for the hearing of the petitions were duly advertised in the newspapers being 'Indian Express', English daily and 'Sandesh', Gujarati daily both Ahmedabad editions of 24th May 2016 and the publication in the Government gazette was dispensed with as directed in the said orders. Affidavits dt. 7th June 2016 confirm the same. No one has come forward with any objections to the said petitions even after the publication and the same has been further confirmed by Page 2 of 8 HC-NIC Page 2 of 8 Created On Sat Aug 13 04:43:40 IST 2016 O/COMP/171/2016 ORDER the additional affidavit dated 10th August 2016.
5. Notice of the petition has been served upon the Office of the Official Liquidator for the Transferor company. The report dated 28th July 2016 has been filed by the Official Liquidator after taking into account the report of the Chartered Accountant appointed by him out of the panel. It has been observed by the Official Liquidator that the affairs of the Transferor Company have been conducted within its object clauses and they have not been conducted in any manner prejudicial to the interest of the members or public interest, hence the petitioner transferor company may be dissolved without following the process of winding up. However, the Official Liquidator has sought directions to be issued to preserve the books of accounts, papers and records and not to dispose of the same without prior permission of the Central Govt. as per the provisions of Section 396 (A) of the Companies Act, 1956. Accordingly, the Transferee Company is hereby directed to preserve the books of accounts, papers and records of the Transferor Company and not to dispose of the same without prior permission of the Central Govt. It is hereby further directed that even after the scheme is sanctioned, the Transferor company shall comply with all the applicable provisions of law and shall not be absolved from any of its statutory liabilities.
6. Notice of the petitions have been served upon the Central Govt. and Mr. Kshitij Amin, learned Central Government Standing Counsel has appeared for Mr. Devang Vyas, learned additional solicitor general for the Central Govt. An affidavit dt. 28th July 2016 has been filed by Mr. Shambhu Kumar Agarwal, the Regional Director, North-
Western Region, Ministry of Corporate Affairs, whereby
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some observations are made.
7. The attention of this court is drawn to the Additional Affidavit dated 10th August 2016 filed by Mr. Naresh Purohit, the Director ans Authorised Signatory of the Petitioner Companies, whereby all the above issues have been dealt with. I have further heard submissions made by the learned counsel appearing for the Central Govt. and Mrs. Swati Soparkar, learned advocate appearing for the petitioners as follows:
(i) It has been submitted that observations made vide para 2(a) and (b) are factual statements and do not require any response.
(ii) The observation made vide para 2 (c) of the said affidavit pertains to the absence of the working sheets for calculation of Share Exchange Ratio as worked out by M/s Mehul Khatsuriya & Associates, Chartered Accountants.
In this regard, it has been submitted that both the companies are private limited companies and the shares of both the companies are held by the same set of shareholders. The proposed ratio is equitable and since no public interest is involved, it is not relevant to have the working sheets for the same. The concerned shareholders have accepted the same and no one has raised any objection with regard to the fairness of the said ratio.
(iii) The observation of the Regional Director made vide para 2(d) of the said affidavit pertains to the compliance of the Accounting Standard - 14 ('AS - 14') to be followed by the Transferee Company while passing the Accounting Page 4 of 8 HC-NIC Page 4 of 8 Created On Sat Aug 13 04:43:40 IST 2016 O/COMP/171/2016 ORDER entries upon Scheme being effective. In this regard, it has been submitted that the said issue has been settled by a series of Judgments confirming the entitlement of the petitioner company to select a particular treatment under the scheme. The petitioner companies have undertaken to make requisite disclosures in its financial statement in this regard. It has also been pointed out that the issue regarding restriction on the future use of the resultant reserves , if any in the books of the Transferee Company has been concluded vide order passed in O. J. Appeal No. 33 of 2012 in the matter of Adishree Tradelinks Private Limited (176 Company Cases 67 Guj.). In lights of the same no further directions are required to be issued to the Petitioner Companies.
(iv) The next observation made vide para 2 (e) pertains to the letter dated 18th May 2016 sent by the Regional Director to the Income Tax Department to invite their objections, if any. Since no reply is received from the said department within the statutory period of 15 days as envisaged by the relevant circular of the Ministry of Corporate Affairs, it can be presumed that the Income Tax dept. has no objection to the proposed scheme of arrangement. The petitioner companies have agreed to comply with the applicable provisions of the Income Tax Act and rules. In view of the same, no further directions are required to be issued to the petitioner companies in this regard.
(v) It has been further submitted that there are no complaints received by the Registrar of Companies as confirmed by para 2 (f). The Regional Director has vide the observation 2 (g) confirmed that it has no other Page 5 of 8 HC-NIC Page 5 of 8 Created On Sat Aug 13 04:43:40 IST 2016 O/COMP/171/2016 ORDER objection except the above and further confirmed that the proposed Scheme is not prejudicial to the interest of the shareholders of the petitioner companies and the public at large.
8. At this stage, attention of the court is drawn to the second affidavit dated 4th August 2016 filed by Mr. Jatinder Kumar Jolly, the Regional Director, North Western Region placing on record the communications dated 27th July 2016 received from the Income Tax Dept. in response to the aforesaid letter dated 18th May 2016. Since the same has been served upon the advocate of the petitioner company on 11th August 2016, oral submissions have been made in this regard. It has been submitted by Mrs. Soparkar on behalf of the petitioners that there are no adverse remarks made by the Income Tax Dept. It has been confirmed that there are no pending demands against either of the companies. Upon Scheme being effective, the Transferee Company shall be responsible for all the future demands as already envisaged in the Scheme. The petitioner companies have already agreed to comply with all applicable provisions of Income Tax Act and Rules vide the affidavit dated 10th August 2016.
9. Considering all the facts and circumstances and taking into account all the contentions raised by the affidavits and reply affidavits, undertakings provided vide the additional affidavit dated 10th August 2016, and submissions made at the time of hearing, I am satisfied that the observations made by the Regional Director, Ministry of Corporate Affairs, do not survive. I have come to the conclusion that the present scheme of amalgamation is in the interest of its shareholders and creditors as well as in the public interest and the same deserves to be Page 6 of 8 HC-NIC Page 6 of 8 Created On Sat Aug 13 04:43:40 IST 2016 O/COMP/171/2016 ORDER sanctioned and the same is hereby sanctioned.
10. Prayers in terms of paragraph 16(a) of the Co. Petition No. 171 of 2016 and paragraph 15 (a) of the Co. Petition No. 172 of 2016 are hereby granted.
11. The petitions are disposed of accordingly. So far as the costs to be paid to the Central Govt. Standing Counsel is concerned, I quantify the same at Rs. 7,500/- per petition. The same may be paid to the learned Standing Counsel appearing for the Central Govt. Costs to be paid to the Office of the Official Liquidator is quantified at Rs. 7,500/- per petition payable only by the Transferor Company. The same may be paid to the Office of the Official Liquidator.
12. The petitioner companies are further directed to lodge a copy of this order, the detailed schedule of immovable assets of the Transferor Company as on the date of the order and the Scheme duly authenticated by the Registrar, High Court of Gujarat, with the concerned Superintendent of Stamps, for the purpose of adjudication of stamp duty, if any, on the same within 60 days from the date of the order.
13. The Petitioner companies are directed to file a copy of this order alongwith a copy of the scheme with the concerned Registrar of Companies, electronically, along with INC-28 in addition to physical copy as per relevant provisions of the Act.
14. Filing and issuance of drawn up order is hereby dispensed with.
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15. All concerned authorities to act on a copy of this order along with the scheme duly authenticated by the Registrar, High Court of Gujarat. The Registrar, High Court of Gujarat shall issue the authenticated copy of this order alongwith Scheme as expeditiously as possible.
(R.M.CHHAYA, J.) Suchit Page 8 of 8 HC-NIC Page 8 of 8 Created On Sat Aug 13 04:43:40 IST 2016