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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF OCTOBER, 2015
BEFORE
THE HON’BLE MR.JUSTICE ARAVIND KUMAR
CO.P.NO.274/2014 C/W CO.P.NO. 275/2014
CO.P.NO.274/2014:
BETWEEN:
RE HOLDINGS PRIVATE LIMITED, AN EXISTING COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956 AND HAVING ITS REGISTERED OFFICE AT 4TH FLOOR, TRIDENT TOWERS 278, 10TH MAIN ROAD, ASHOKA PILLAR ROAD, JAYANAGAR 2ND BLOCK, BANGALORE-560 011 BY ITS DIRECTOR MR. S.N. SUBRAMANYA.
...PETITIONER
(BY SRI. CHANDRA KANTHARAJA URS B.G., ADVOCATE)
AND:
NIL
...RESPONDENT
(BY SRI.K.S. MAHADEVAN, ADVOCATE FOR OL; SMT. SOWBHAGYA N.A, CGC FOR ROC)
COMPANY PETITION NO. 274/2014 IS FILED UNDER SECTION 391 TO 394 OF THE COMPANIES ACT, 1956 PRAYING TO COMPOSITE SCHEME OF AMALGAMATION OF THE PETITIONER COMPANY NAMELY M/S RE HOLDINGS
2 PRIVATE LIMITED WITH M/S ASTRA MERCHANDISING PRIVATE LIMITED AS PER THE SCHEME- ANNEXURE-D HERETO, BE SANCTIONED BY THE HON’BLE HIGH COURT WITH EFFECT FROM THE APPOINTED DATE SO AS TO BE BINDING ON ALL THE SHAREHOLDERS AND CREDITORS OF THE PETITIONER COMPNAY AND ON THE SAID PETITIONER COMPANY AND ETC.,
CO.P.NO.275/2014:
BETWEEN:
AQUARIUS HOSPITALITY AND LEISURE PRIVATE LIMITED, AN EXISTING COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956 AND HAVING ITS REGISTERED OFFICE AT 4TH FLOOR, TRIDENT TOWERS 278, 10TH MAIN ROAD, ASHOKA PILLAR ROAD, BANGALORE-560 011 REPRESENTED BY ITS DIRECTOR MR. S.N. SUBRAMANYA.
...PETITIONER
(BY SRI. CHANDRA KANTHARAJA URS B.G., ADVOCATE)
AND:
NIL
...RESPONDENT
(BY SRI.K.S. MAHADEVAN, ADVOCATE FOR OL; SMT. SOWBHAGYA N.A, CGC FOR ROC)
COMPANY PETITION NO. 275/2014 IS FILED UNDER SECTION 391 TO 394 OF THE COMPANIES ACT, 1956 PRAYING TO COMPOSITE SCHEME OF AMALGAMATION OF THE PETITIONER COMPANY NAMELY M/S ACQUARIUS HOSPITALITY AND LEISURE PRIVATE LIMITED WITH M/S ASTRA MERCHANDISING PRIVATE LIMITED AS PER THE SCHEME- ANNEXURE-D HERETO, BE SANCTIONED BY THE HON’BLE HIGH COURT WITH EFFECT FROM THE
3 APPOINTED DATE SO AS TO BE BINDING ON ALL THE SHAREHOLDERS AND CREDITORS OF THE PETITIONER COMPNAY AND ON THE SAID PETITIONER COMPANY AND ETC.,
THESE COMPANY PETITIONS COMING ON FOR ORDERS, THIS DAY THE COURT MADE THE FOLLOWING:
O R D E R
Petitioners who are transferor companies are seeking for sanction of the composite scheme of amalgamation – Annexure-D.
Petitioners – companies for their mutual benefit have evolved a scheme of amalgamation as per Annexure-D. Both the petitioner – companies came to be incorporated on 31.08.2005 and 12.12.2007 respectively and they have been carrying on their business as per the objects envisaged in the Memorandum and Articles of Association. During their subsistence, they have evolved the composite scheme of amalgamation whereby, transferor – companies would be amalgamated with M/s.Astra Merchandising Private Limited (transferee company) as detailed in the scheme
4 of amalgamation – Annexure –D. Scheme came to be considered by the Board of Directors of both the transferor companies in their meeting held on 27.12.2013 and same was approved. Thereafter, shareholders have given their consent. Since they had given their consent in writing, transferor companies filed C.A.Nos.1437/2014 and 1438/2014 before this Court seeking for dispensation for convening of meeting of equity shareholders, secured creditors and unsecured creditors. This Court after taking note of the plea raised by the transferor companies, by order dated 13.11.2014 (Annexure-K in both petitions) allowed the applications and convening of meeting of equity shareholders, secured and unsecured creditors came to be dispensed with. Subsequent thereto, petitions in question have been filed.
Notice came to be issued by this Court on 04.12.2014 to the Regional Director and Official Liquidator. Petitioners were directed to take out publication in ‘The Hindu’ English Daily and
5 ‘Udayavani’, Kannada Daily simultaneously and accordingly, it has been complied with. Despite notice being published in the newspapers, no person interested in the affairs of the petitioner – companies have appeared and opposed the same, muchless shareholders and creditors have approached this Court opposing sanction of the scheme.
On 08.01.2015 based on the prayer made by Official Liquidator in OLR Nos.574/2014 and 575/2014, this Court appointed M/s.Ramanujam & Co., Chartered Accountants to scrutinize the books of accounts of transferor companies and directed the auditors to submit a report and on furnishing of the said report, official Liquidator has filed report on 05.08.2015 whereunder Official Liquidator has opined based on the scrutiny report dated 30.07.2015 that transferor companies may be dissolved without winding up. The Registrar of Companies acting on behalf of the Regional Director has filed an affidavit dated 25.03.2015 with the
6 following observations and same is identical in both the affidavits. They are as follows: (i) “The notice dated 27.11.2014 was issued to the Income-tax Department as required by Ministry of Corporate Affairs General Circular No.1/2014 dated 15.1.2014 giving 15 days time. However, no comments/objections have been received from the Income Tax Department.
(ii) Clause 2.3 of Part 2 of the scheme provides for Appointed Date as 01.4.2013. The petitioner transferor and transferee companies have filed the Balance Sheets and Profit and Loss Account upto the financial year ended 31.3.2014. hence, the Appointed Date may be postponed to 01.4.2014 in order to avoid any revision of accounts/returns.”
In reply to the said observations made by the Registrar of Companies, common reply has been filed by the petitioners wherein it is stated that since no adverse comment has been received from the Income Tax Department, no further reply is to be furnished by the
7 petitioners for the said observation. Said reply given by the petitioner – companies is hereby accepted.
Insofar as observation relating to clause 2.3 of part-2 of Scheme of Amalgamation which provides for appointed date as 01.04.2013 and seeking for postponement of the said date to 01.04.2014 in order to avoid any revision of accounts/returns, both petitioners have submitted that apart from scheme of amalgamation having been approved by the High Court of Judicature of Madras insofar as transferee company is concerned and appointed date as per the Scheme of Amalgamation being 01.04.2013 which having been approved by the Directors of the transferor companies on 27.12.2013 and the departmental circular issued stipulated for the balance sheet for the financial year ending to be filed in respect of the companies which are under the process of amalgamation policy having been complied, question of postponent of the appointed date does not arise.
8 6. Undisputedly, no objection has been received to the appointed date from any of the shareholders or creditors of the petitioner – companies. However, it is the Regional Director who has sought for postponement of appointed date. In that view of the matter, observation made by the Registrar of Companies/Regional Director seeking for dispensation of the appointed date, does not deserve to be accepted.
That apart, Scheme of Amalgamation at clause 3.5 of Part 3 would also indicate that all loans raised and used and liabilities incurred by the transferor companies prior to the effective date shall be discharged by the transferee company. In that view of the matter, sanction of the scheme in any event would be subject to liabilities being borne by transferee company which relates to transferor companies and action in that regard can be initiated against transferee company in the aforestated circumstances.
9 8. It is noticed that there is no objection from any person interested in the affairs of the transferor companies or the statutory authority except observation made by Registrar of Companies as noticed herein above which has not been accepted by this Court for the reasons already assigned. A perusal of the scheme at Annexure-D would indicate that Scheme of Amalgamation has taken into consideration the mutual benefit of the transferee as well as transferor companies, its shareholders and employees of the transferor company would be accommodated in the transferee company and there being no secured or unsecured creditors, there is no impediment for allowing these petitions by sanctioning the Scheme of Amalgamation. Hence, keeping all these aspects in mind, prayer as sought for by petitioners in these writ petitions deserves to be granted.
10 Hence, I proceed to pass the following: ORDER (1) Company petitions Nos.274/2015 and 275/2015 are hereby allowed. (2) The scheme of amalgamation at Annexure-D is sanctioned so as to bind the shareholders, members and creditors of the transferor and transferee companies. (3) Transferor companies named above shall stand dissolved without the process of winding up. (4) A copy of this order shall be filed with the Registrar of Companies within 30 days from the date of receipt of this order.
SD/- JUDGE
*sp