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2015 (5) TMI 281 - DELHI HIGH COURT

2015 (5) TMI 281 - DELHI HIGH COURT - TMI - Application for Scheme of Amalgamation under Sections 391 to 394 of the Companies Act, 1956 - Observations of Regional director regarding short term unsecured borrowings , insufficiency of authorized share capital of the transferee company, duly addressed - Held that:- In response to the objections raised by the Official Liquidator and the Regional Director, Northern Region with regard to insufficiency of authorized share capital of the transferee comp .....

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efore, in terms of the said share exchange ratio, the transferee company shall issue and allot equity shares amounting to ₹ 53,13,660/- to the shareholders of the transferor company. He, therefore, submits that the increase of ₹ 55,00,000/- in the authorized share capital of the transferee company, as approved in Clause 10.1 of the Scheme of Amalgamation, is sufficient to allot shares to the shareholders of the petitioner/transferor company. In view of the above, the objections raise .....

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Bank and ING Vysya Bank have been arranged by the group company i.e. Sogefi SpA with their global relation and engagement with the bank. Security has been provided by the Ultimate Holding Company and its subsidiary companies through BNP Paribas Bank and ING Bank NV respectively. It is further submitted that this loan is therefore secured with respect to the company, Sogefi SpA but is unsecured with respect to the transferor company. Copies of the loan agreements entered into by the transferor co .....

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ional Director has filed his additional affidavit dated 4th March, 2015 stating that all the objections/observations that had been raised by him earlier now stand adequately addressed and that he has no further objection in the matter. In view of the above, nothing survives so far as the objection of the Regional Director, Northern Region is concerned.

No objection has been received to the Scheme of Amalgamation from any other party. Considering the approval accorded by the equity sha .....

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n to the Scheme of Amalgamation. Consequently, sanction is hereby granted to the Scheme of Amalgamation under Sections 391 and 394 of the Companies Act, 1956. - Application for Scheme of Amalgamation approved. - COMPANY PETITION NO. 633/2014 - Dated:- 17-4-2015 - Sudershan kumar misra, J For the Appellant : Mr. Samar Bansal and Mr.Vinayak Mehrotra For the Regional Director : Mr. Kirtiman Singh and Ms. Prerna Shah, Advocates Mr. Rajiv Bahl, Advocate Sudershan kumar misra, J 1. This petition has b .....

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the registered office of the transferee company is situated at Bangalore, Karnataka, outside the jurisdiction of this court. Learned counsel for the petitioner submitted that the Scheme of Amalgamation in respect of the transferee company had already been sanctioned by the Karnataka High Court vides order dated 2nd February, 2015 passed in CP No. 210/2014 filed by the transferee company. A copy of the same is placed on record. 3. The petitioner/transferor company was originally incorporated unde .....

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10/- each. The issued, subscribed and paid-up share capital of the company was ₹ 12,76,36,860/- divided into 1,27,63,686 equity shares of ₹ 10/- each. 5. A copy of the Memorandum and Articles of Association of the petitioner/transferor company has been filed on record with the application, being CA(M) 135/2014, earlier filed by the petitioner. The audited balance sheet, as on 31st March, 2013, of the petitioner/transferor company, along with the report of the auditors, had also been .....

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nal and other costs associated with the functioning of the companies which are engaged in similar and related businesses, focused operational efforts, rationalization, standardization, and simplification of business processes, productivity improvements, improved procurement and elimination of duplication and rationalization of all administrative costs. 7. So far as the share exchange ratio is concerned, the Scheme provides that, upon coming into effect of this Scheme, the transferee company shal .....

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titioner/transferor company in their meetings held on 28th May, 2014 and 21st January, 2015 have unanimously approved the proposed Scheme of Amalgamation. Copies of the Resolutions passed at the meetings of the Board of Directors of the petitioner/transferor company have been placed on record. 10. The petitioner/transferor company had earlier filed CA (M) No. 135/2014 seeking directions of this court to dispense with the requirement of convening the meetings of its shareholders, secured and unse .....

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ic individual notice to ING Vysya Bank Limited, Deutsche Bank AG Bangalore and the corporate unsecured creditors of the petitioner/ transferor company, namely, Lanxess India Private Limited, Ring Plus Aqua Limited, Sebros Industries Private Limited and MEUNIDEC at the time of moving second motion petition calling for their objection, if any, to the Scheme. 11. The petitioner/transferor company has thereafter filed the present petition seeking sanction of the Scheme of Amalgamation. Vide order da .....

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n 8th November, 2014 and 7th November, 2014 respectively. Copies of the newspaper clippings containing the publications have been filed along with the affidavit of service. The petitioner company has also filed an affidavit dated 5th November, 2014 of Sh. Ajay Kumar Maan, authorized signatory of the petitioner company submitting that pursuant to directions passed by this court vide order dated 1st October, 2014, notice was issued to the unsecured creditors, whose board resolutions have not been .....

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the affairs of the petitioner/transferor company do not appear to have been conducted in a manner prejudicial to the interest of its members, creditors or public interest, as per second proviso of Section 394(1) of the Companies Act, 1956. However, in Para 9 of the report, it is submitted by the Official Liquidator that in spite of increase in the authorized share capital of the transferee company, pursuant to the Scheme, it will remain insufficient to issue shares to the shareholders of the tr .....

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n Clause 12.1(b) of Part-C of the Scheme, it has been stated that the transferee company shall account for the arrangement in the books of accounts according to Accounting Standard-14 issued by the Institute of Chartered Accountants of India. He further submitted that in terms of Clause 10.5 of Part-C of the Scheme, it has been stated that as on effective date, the transferor company shall stand dissolved without the process of winding up. 14. The Regional Director, in para 11 of his report, has .....

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crores from banks on account of cash credit. He, therefore, prays that the petitioner company may be asked as to how it has obtained such huge borrowings from the banks without creating any charge thereon in terms of the provisions of Section 125 of the Companies Act, 1956. 15. In response to the objections raised by the Official Liquidator and the Regional Director, Northern Region with regard to insufficiency of authorized share capital of the transferee company, the petitioner/transferor com .....

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exchange ratio, the transferee company shall issue and allot equity shares amounting to ₹ 53,13,660/- to the shareholders of the transferor company. He, therefore, submits that the increase of ₹ 55,00,000/- in the authorized share capital of the transferee company, as approved in Clause 10.1 of the Scheme of Amalgamation, is sufficient to allot shares to the shareholders of the petitioner/transferor company. In view of the above, the objections raised by the Official Liquidator and t .....

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d by the group company i.e. Sogefi SpA with their global relation and engagement with the bank. Security has been provided by the Ultimate Holding Company and its subsidiary companies through BNP Paribas Bank and ING Bank NV respectively. It is further submitted that this loan is therefore secured with respect to the company, Sogefi SpA but is unsecured with respect to the transferor company. Copies of the loan agreements entered into by the transferor company with the banks are placed on record .....

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ffidavit dated 4th March, 2015 stating that all the objections/observations that had been raised by him earlier now stand adequately addressed and that he has no further objection in the matter. In view of the above, nothing survives so far as the objection of the Regional Director, Northern Region is concerned. 18. No objection has been received to the Scheme of Amalgamation from any other party. The petitioner company, in the affidavit dated 24th January, 2015 of Sh. Samar Bansal, Advocate of .....

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