TMI Blog2018 (8) TMI 2103X X X X Extracts X X X X X X X X Extracts X X X X ..... authoritatively adjudicated upon by the Calcutta High Court with the help of case law and the facts also identical, therefore, the point in issue is covered by the judgment ibid in favour of the petitioner. - CWP No. 1788 of 2010 - - - Dated:- 2-8-2018 - Dharam Chand Chaudhary, J. For the Petitioner : Mr. Bhupinder Gupta, Sr. Advocate with Ms. Poonam Gehlot, Advocate. For the Respondent : Mr. Ajay Kumar, Sr. Advocate with Mr. Dheeraj K. Vashisth, Advocate. ORDER Dharam Chand Chaudhary, Judge (Oral) By means of this writ petition order, Annexure P-7 dated 17.06.2009, whereby consequent upon the request made by the petitioner in its application, Annexure P-5 to incorporate by way of change its name in the record, a sum of Rs.01,04,21,508/- was sought to be paid towards unearned increase/transfer charges on account of alleged violation of Clause 2(xi) of conveyance deed, Annexure P-2 by the respondent-Corporation before the request for incorporation of its name in the records is considered. The demand notices dated 19.02.2010, Annexure P-11 and dated 08.04.2010, Annexure P-12, whereby a sum of Rs.01,04,21,508/- has been sought to be deposited with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .e. 11th August, 2008, the petitionerCompany incorporated under the laws of Singapore, acquired 90.89% of total equity share capital of the Dabur Pharma Limited . The management control of Dabur Pharma Limited , therefore, came to be changed and its board re-constituted with the nominee of the petitioner Company. The management of the Company i.e., Dabur Pharma Limited later on decided to change its name from Dabur Pharma Limited to Fresenius Kabi Oncology Limited , the petitioner-Company. The Registrar of Companies, NCT of Delhi allowed the change of name of Company from Dabur Pharma Limited to Fresenius Kabi Oncology Limited on 9th January, 2009. It is in this backdrop, petitioner-Company on 18th February, 2009 made an application, Annexure P-5 to the respondent with a request to change the name of the allottee in respect of plot in question and record its name in place of allottee Company. The respondent instead of making change in the name of allottee has raised a demand of Rs.01,04,21,508/- vide letter dated 17.06.2009, Annexure P-7 towards the unearned increase/transfer charges and called upon the petitioner to remit the said amount to the Corporation within 30 days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... except for the approval of the Managing Director of the respondent-Corporation. The petitioner allegedly has suppressed the material facts from the Court as according to respondent, vide sale deed/purchase agreement dated 18.04.2008 (Annexure R-2), a transaction in a sum of Rs. 782.59 crores has taken place between the promoters i.e. Dabur Pharma Limited and the petitionerCompany. The amount payable by way of unearned/transfer charges, as such, is Rs. 01,04,21,508/-, which is payable by the petitioner to the respondent before its name is entered in the records of the respondent. The present is not stated to be a simple case of change of name of the Company as envisaged under Section 21 of the Companies Act, 1956 but the transfer of its share holdings by M/s Dabur Pharma Limited to the petitionerCompany for a consideration of Rs.782.59 crores. The respondent, as such, has reiterated its claim of Rs. 01,04,21,508/- against the petitioner-Company. 7. On hearing Mr. Bhupinder Gupta, learned Senior Advocate assisted by Ms. Poonam Gehlot, Advocate on behalf of the petitioner and Mr. Ajay Kumar, learned Senior Advocate assisted by Mr. Dheeraj K. Vashisth, Advocate on behalf of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... understandable. 9. A similar question was pending adjudication before the High Court at Calcutta in Writ Petition No. 24788 (W) of 2010 titled M/s Fresenius Kabi Oncology Limited v. The State of West Bengal and Others and its connected matter Writ Petition No. 26049 (W) of 2014 titled M/s Fresenius Kabi Oncology Limited and Another V. The State of West Bengal and Others. As a matter of fact, the allottee Company in these cases was also Dabur Pharma Limited, however, with the changed name i.e. M/s Fresenius Kabi Oncology Limited , the petitioner herein. In that case also, State of West Bengal had claimed unearned increase/transfer charges consequent upon the share capital of the Dabur Pharma Limited , the allottee Company purchased by M/s Fresenius Kabi Oncology Limited , the same Company which is petitioner before this Court in the present writ petition. Both the writ petitions were decided vide judgment dated 5th May, 2015 by learned Single Judge of the High Court at Calcutta with the observations that when the respondent-State had recognized independent juridical entity of Dabur Pharma Limited as a lessee, the subsequent change of promoter group, which ultimately led to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the inference that a shareholder, on investing money in the purchase of shares, becomes entitled to the assets of the company and has any share in the property of the company. A shareholder has got no interest in the property of the company though he has undoubtedly a right to participate in the profits if and when the company decides to divide them. The interest of a shareholder vis-a-vis the company was explained in the case of Chiranjitlal Chowdhuri v. The Union of India and Others [1950] S.C.R. 869, 904.). That judgment negatives the position taken up on behalf of the appellant that a shareholder has got a right in the property of the company. It is true that the shareholders of the company have the sole determining voice in administering the affairs of the company and are entitled, as provided by the Articles of Association to declare that dividends should be distributed out of the profits of the company to the shareholders but the interest of the shareholder either individually or collectively does not amount to more than a right to participate in the profits of the company. The company is a juristic person and is distinct from the shareholders. It is the company which owns t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngst the shareholders. It was further held therein that he has further a right to participate in the assets of the company which would be left over after winding up but not in the assets as a whole. In the present case, it is nobody s case that the company was wound up and the assets of the wound up company which were left over after winding up of the said company was transferred by the promoter shareholder in favour of the stranger purchaser. As such, by following the aforesaid decision of the Hon ble Supreme Court as well as of this Hon ble Court, this Court has no hesitation to hold that with the transfer of the share by the promoter shareholder to the present shareholder, namely the transferees of such share, the lease hold interest of the company was not transferred from the promoter shareholder to the present shareholder of the said company. The petitioner-company which obtained the said lease from the Government, still remains the lessee of the said plot of land and its leasehold interest in the said plot of land remains unaffected by transfer of share by the promoter shareholders to the present holders. As such, this Court holds that the restrictive clause regarding transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed or commenced by or against the company by its former name may be continued by or against the company by its new name. This makes it abundantly clear that as the alteration is only in the name and not in the identity and that the statute itself grants the right to continue an existing proceeding by the old company in its new name. 13. In the case of W.H. Targett (India) Ltd. (supra), a Division Bench of this Court also considered the scope of Section 23 of the Companies Act, 1956 and in this case, it has been observed:- SECTION 23 of the Companies Act, 1956, enumerates the effect of the change of name by a company. Subsection (3) of Section 23 of the said act contemplates that the change of name shall not affect any rights or obligations of the company, or render defective any legal proceedings by or against it; and any legal proceedings, which might have been continued or commenced by or against the company by its former name may be continued by or against the company by its new name. 14. Mr. Sengupta on the other hand submitted that the result of transfer of the entire equity holding of the promoter group to another set of shareholders is transfer of the subject-uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable to pay the transfer fee. The charging provision, if that expression is used, in terms of the said notification however is not recordal of change of name but transfer of leasehold rights. In the instant case the authorities are not seeking to demand transfer fee on the incidence of transfer of assets but on the application for recording change of name, which also is the main ground for with holding licence under the above referred Control Order. 17. This stand of the State I am unable to accept. I am not entering into the question in this writ petition as to whether the transfer of majority equity holding of a company would result in transfer of assets of the company or not because that is not the lis which has arisen in these two proceedings, though the State has referred to that dispute tangentially. On permitting recordal of Dabur Pharma Limited as the lessee on the 15th March, 2005 the State had recognized independent juridical entity of Dabur Pharma Limited as a lessee. Subsequently, change of the promoter group, which eventually led to the change of corporate name, in my opinion, cannot saddle the petitioner company with an independent obligation to pay transfer fee. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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