Gujarat High Court
Disha Infin Advisor Private Limited vs Respondent(S) on 8 October, 2014
Author: N.V.Anjaria
Bench: N.V.Anjaria
O/COMP/160/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY PETITION NO. 160 of 2014
In COMPANY APPLICATION NO. 159 of 2014
With
COMPANY PETITION NO. 161 of 2014
In
COMPANY APPLICATION NO. 160 of 2014
With
COMPANY PETITION NO. 162 of 2014
In
COMPANY APPLICATION NO. 161 of 2014
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DISHA INFIN ADVISOR PRIVATE LIMITED....Petitioner(s)
Versus
......Respondent(s)
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Appearance:
MRS SANGEETA N PAHWA, 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 N.V.ANJARIA
Date : 08/10/2014
ORAL ORDER
The captioned petitions filed by three Companies are for obtaining a sanction of this Court to the Scheme of Arrangement in the nature of Amalgamation amongst Disha Infin Advisor Pvt. Ltd., NITREX Logistics Pvt. Ltd. and Pinal Infrastructure Pvt. Ltd., being the Transferor Company No.1, Transferee Company and Transferor Company No.2 in that order. They are the respective petitioners in Company Petition No. 160 of 2014, Company Petition No. 161 of 2014 and Company Petition No.162 of 2014. The Scheme is proposed and mooted under sections 391 to 394 read Page 1 of 7 O/COMP/160/2014 ORDER with other relevant provisions of the Companies Act, 1956.
2. All the three petitions being necessarily interconnected, they were heard together and are being considered simultaneously by this common order.
3. Transferor company No.1-Disha Infin Advisor Pvt. Ltd. was incorporated in the name of Disha Infin Advisor Pvt. Ltd. on 13.01.2004. Transferor company No.2-Pinal Infrastructure Pvt. Ltd. was incorporated as Pinal Infrastructure Pvt. Ltd. on 21st April, 2006. The transferee company- NITREX Logistics Pvt. Ltd. was incorporated as Dipak Woodcrafts and Seasoning Pvt. Ltd. on 4th November, 1991, and subsequently its name was changed to the present one.
3.1 The objects of Transferor Company No. 1, as set out in the Memorandum of Association, are inter alia to acquire, build, construct, develop etc. lands, movable or immovable properties. The objects of Transferor Company No. 2 are inter alia to purchase, to take on lease or otherwise, acquire land, buildings etc. Similarly, the objects of the transferee company are inter alia to carry out business in India and abroad for inventory management, transportation management, strategic sourcing and procurement, warehouse management, and to undertake all types of construction and maintenance work and to acquire by purchase, lease, exchange, hire or otherwise the lands, properties, buildings etc.. All the three companies are having their business activities in the similar field.
3.2 The details of the shareholding as on 31.03.2013 of each of the petitioner Companies are given in the respective Company Petitions. All the Companies have their registered offices in the State of Gujarat at the addresses mentioned in the petition concerned.
4. Heard learned advocate Mr. Navin Pahwa for the petitioner Companies and learned Assistant Solicitor General Mr. Devang Vyas, who appeared for the Central Government upon service of notice of the present petitions.
5. It was pointed out from the record that transferor company No.1, prior to filing of the present petition, filed Company Application No. 159 of 2014. By order dated 17.06.2014, this Court dispensed with the meeting of Page 2 of 7 O/COMP/160/2014 ORDER the equity shareholders and unsecured creditors of the said company in view of consent in writing given by all the equity shareholders and unsecured creditors to the proposed scheme of the Amalgamation. The court recorded in the said order that there were no secured creditors.
5.1 Transferor company No.2 filed Company Application No. 161 of 2014. By order dated 17.06.2014, this court dispensed with holding of meeting of equity shareholders and unsecured creditor in view of their consent to the Scheme in writing. There were no secured creditors, recorded the court in its order.
5.2 In the same way transferee company being petitioner of Company Petition No. 161 of 2014 filed Company Application No. 160 of 2014, in which order was passed on 17.06.2014 by this court dispensing with the requirement of holding of meeting of equity shareholders. Holding of meeting of creditors was not required, as it is a transferee company.
6. It was thereafter that the present substantive petitions came to be filed by the said three companies placing the Scheme of Amalgamation for consideration and seeking sanction of this court. The said Scheme is annexed at Annexure-C in the petition.
6.1 All the three petitions came to be admitted by this court by order dated 30.06.2014. As directed by the court publication of notice of admission was made in English newspaper "Indian Express" and Gujarati Newspaper "Lok Satta-Jan Satta"-both in Ahmedabad Edition on 8.7.2014. Necessary affidavit dated 14.07.2014 in that regard came to be filed by the petitioners producing copy of the advertisement published.
6.2 Notices issued to the Central Government in all the three petitions were served through the Regional Director. In respect of Company Petition No. 160 of 2014 and 161 of 2014, which are the petitions of transferor company Nos. 1 and 2 respectively, the notice was also issued to the Official Liquidator and the same was served. The respective petitioner companies filed affidavit of service.
6.3 In response, one Shambhu Kumar Agarwal, the Regional Director, Ministry of Corporate Affairs, North-Western Region having office at Ahmedabad, filed common affidavit dated 21.08.20154 in all the three Page 3 of 7 O/COMP/160/2014 ORDER petitions. In the said affidavits, the said authority made certain observations and comments. In response to the affidavit filed by Regional Director, one Rajesh M. Lodha, authorisied representative of the transferee company filed affidavit dated 01.09.2014.
7. Proceeding to consider the observations of the Regional Director in this common affidavit in respect of the proposed Scheme and the response of the petitioner transferee company in its aforesaid affidavit-
7.1 The first observation of Regional Director is with regard to Clause No. 12.1 of the Scheme stating that the same is not in accordance with Accounting Standard No. 14. It is stated that the as per the requirement the AS-14 the excess of assets over liabilities should be credited to Capital Reserve Account and the shortfall, if any, should be debited to the Goodwill Accounts and that the Capital Reserve Account shall not treated as free reserve. Whereas the petitioner companies have proposed that the Capital Reserve Account would be treated as free reserve. It was observed that the petitioner companies are required to commply with Accounting Standard-14.
7.1.1 With regard to the said observation, the petitioner transferee company in its aforesaid affidavit dated 1.9.2014 has undertaken to comply with AS-14 and it has further stated that clause-9 of the scheme says that transferor and transferee companies shall comply with the said accounting requirement even otherwise, section 211 (3B) of the companies act obliges the company to make all necessary disclosures in its financial statements. It may be further mentioned that these aspects has been clarified also in Milestone Tradelinks Pvt. Ltd. Reported in (2013) 176 Com Cas 337. Therefore, observation of the Regional Director on the aforesaid score does not have survival value.
7.2 The next observation of the Regional Director is that in view of circular dated 15.01.2014 of the Ministry of Corporate Affairs, he had addressed a letter to the Chief Commissioner of Income Tax, Ahmedabad, seeking specific comments. However, Income Tax Department has not responded to the said letter. The Regional Director has required that petitioner companies should undertake that they would comply with the Income Tax laws.
Page 4 of 7O/COMP/160/2014 ORDER 7.2.1 In the aforesaid affidavit, the petitioners have undertaken that
they will comply with the Income Tax Act and Income Tax Rules.
8. The Official Liquidator has filed its report in Company Petition No. 160 of 2014 and 162 of 2014 - the petitions by the Transferor Companies. Said Rajesh Lodha has also filed his affidavit dated 1.10.2014 in response to the report of the Official Liquidator the same was tendered in the court and was taken on record.
8.1 The Official Liquidator has in his report inter alia mentioned that the accounts of the companies were is sent to the Chartered Accountants and were got examined. The Official Liquidator has commented that there is a mismatch in respect of Paid-up Share Capital of the petitioner company between what is stated in the balance sheet and MCA muster of the petitioner company. The petitioner companies submitted details of share capital which was not same as found in the record of the Registrar of Companies.
8.1.1 The aforesaid discrepancy is explained by the petitioner in its affidavit dated 01.09.2014 aforementioned stating that by virtue of sanction of scheme of Amalgamation in the matter of M/s Kamal Tea Process and Packaging Pvt. Ltd. with the petitioner company, there is a change in paid up share capital of the Company. The petitioners have already filed necessary forms with the office of Registrar of Companies to give effect to the order made by this court in that regard, but change has not been effected in the records of the Registrar of Companies. It is further clarified that the petitioner has been in correspondence with the Registrar of Companies to set right the details of the Equity Capital. Thus, it could be seen that the discrepancy in the record of the Registrar of Companies is due to his not effecting change pursuant to sanction of the scheme of Amalgamation as above. Considering the explanation offered by the Company, the said query raised by the official liquidator is duly satisfied.
9. In view of above, all the observations and comments by the Regional Director made in respect of the Scheme in question have been explained and/or met with and/or do not sustain. Furthermore, from the material on record, the Scheme appears to be fair and reasonable and is not Page 5 of 7 O/COMP/160/2014 ORDER in violation of any provisions of law and is not contrary to public policy. None of the parties concerned have come forward to oppose the Scheme except as mentioned above. All requisite statutory compliances are fulfilled.
9.1 It is further ordered that as required under Section 396-A of the Companies Act, 1956, the transferor companies shall not dispose of or destroy its books of accounts and other connected papers without the prior consent of the Central Government and shall preserve the same.
10. This court is accordingly satisfied that the Scheme of arrangement in the nature of amalgamation amongst the petitioner companies deserve to be granted. Accordingly, prayer in paragraph-12(A) in the above captioned Company Petitions is hereby granted.
11. All the three petitions are allowed and disposed of accordingly.
12. The petitioner companies shall pay towards professional charges to learned Additional Solicitor General Rs.7,500/- in respect of each of the three petitions. The Official Liquidator shall be paid cost of Rs.7,500/- in each of the two petitions by the transferor companies being Company Petition Nos.160 of 2014 and 162 of 2014.
13. The petitioner companies are further directed to lodge a copy of this order, the schedules of immovable assets of all the transferor companies as on the date of this 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.
14. 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 Employee-Form 21 if addition to physical copy as per relevant provisions of the Act.
15. Filing and issuance of drawn up order is hereby dispensed with. All the authorities to act on a copy of this order along with the Page 6 of 7 O/COMP/160/2014 ORDER 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.
(N.V.ANJARIA, J.) cmjoshi Page 7 of 7