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Gulshan Agro Food Limited v/s Gulshan Holdings Pvt. Limited

    Company Petition Appeal No. 220 of 2007

    Decided On, 26 May 2008

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE S. N. AGGARWAL

    For the Appearing Parties: Arvind Kumar, Manisha Tyagi, R.D. Kashyap, Advocates.



Judgment Text

(1) M/s. Gulshan Agro Food Limited (here in after to be referred as transferor Company No. 1); Gulshan Industries Limited (here in after to be referred as Transferor Company No. 2); Gulshan Capital Limited ((here in after to be referred as Transferor Company No. 3); Gulshan Impex (P) Limited (here in after to be referred as Transferor Company No. 4); New Hind Fin Lease (P)Limited (here in after to be referred as Transferor Company No. 5) and "gulshan Holdings Pvt. Limited" (hereinafter to be referred as the transferee company) have jointly filed this petition under Sections 391 (1) to 394 of the companies Act, 1956 seeking sanction of the proposed scheme of amalgamation for amalgamation of the transferor company with the transferee company.


(2) THE proposed scheme of amalgamation has been filed along with the present petition and the same has been perused by this Court.


(3) TRANSFEROR company No. 1 was incorporated on 14th September, 1995 under the Companies Act, 1956 under the name and style of "gulshan Agro Food limited"" with an authorized share capital of Rs. 2,00,00,000/- divided into 20,00,000 equity shares of Rs. 10/- each. The issued, subscribed and paid up share capital of the said company is Rs. 94,14,000/- divided into 9,41,000 equity shares of Rs. 10/- each.


(4) TRANSFEROR company No. 2 was incorporated on 26th June, 1995, 1995 under the Companies Act, 1956 under the name and style of "gulshan Industries Ltd"" with an authorized share capital of Rs. 2,25,00,000/- divided into 22,50,000 equity shares of Rs. 10/- each. The issued, subscribed and paid up share capital of the said company is Rs. 1,87,11,750/- divided into 18,71,175 equity shares of rs. 10/- each.


(5) TRANSFEROR company No. 3 was incorporated on 18th October, 1995 under the companies Act, 1956 under the name and style of "gulshan Capital Limited"" with an authorized share capital of Rs. 1,00,00,000/- divided into 10,00,000 equity shares of Rs. 10/- each. The issued, subscribed and paid up share capital of the said company is Rs. 49,20,000/- divided into 4,92,000 equity shares of Rs. 10/-each.


(6) TRANSFEROR company No. 4 was incorporated on 18th August, 1998 under the companies Act, 1956 under the name and style of "gulshan Impex (P) Ltd"" with an authorized share capital of Rs. 10,00,000/- divided into 1,00,000 equity shares of Rs. 10/- each. The issued, subscribed and paid up share capital of the said company is Rs. 10,00,000/- divided into 1,00,000 equity shares of Rs. 10/-each.


(7) TRANSFEROR company No. 5 was incorporated on 17th April, 1995 under the companies Act, 1956 under the name and style of "new Hind Fin-Lease Pvt. Ltd. " with an authorized share capital of Rs. 10,00,000/- divided into 1,00,000 equity shares of Rs. 10/- each. The issued, subscribed and paid up share capital of the said company is Rs. 9,97,000/- divided into 99,700 equity shares of Rs. 10/- each.


(8) THE transferee company was incorporated on 20th November 1985 under the companies Act, 1956 under the name and style of "gulshan Holdings Pvt. Ltd. " with an authorized share capital of Rs. 10,00,000/- divided into 1,00,000 equity shares of Rs. 10/- each. The issued, subscribed and paid up share capital of the said company is Rs. 9,97,000/- divided into 99,700 equity shares of Rs. 10/- each.


(9) THE registered office of all the transferor companies as well as that of the transferee company are situated at Delhi, within the territorial jurisdiction of this Court.


(10) THE transferor companies and the transferee company had earlier filed a company Application being Co. A. (M) No. 82/2007 which was allowed vide order passed by this Court on 08. 05. 2007. This court vide its order passed on 08. 05. 2007 had dispensed with the requirement of convening and holding of meetings of the secured or unsecured creditors of all the transferor companies as well as that of the transferee company as there were no secured or unsecured creditor in the said companies. However, the Court directed for convening of separate meetings of the equity shareholders of all the transferor companies as well as that of the transferee company under the supervision of court appointed chairman/alternate Chairman to consider and approve the proposed scheme of amalgamation. In compliance with the said order of this court, separate meetings of the equity shareholders of all the transferor companies and the transferee company were duly convened and held on 07. 07. 2007 under the supervision of the court appointed Chairman and the Alternate Chairman. The scheme of amalgamation was unanimously approved and adopted in each of the meeting. Voting pattern of the meetings is given below : meeting of the Equity Shareholders of all transferor companies and transferee company.


TABLE


Scheme of amalgamation was approved unanimously by the equity shareholders


(11) AFTER the present petition was filed, this Court vide its order passed on 19. 09. 2007 had directed issuance of notices of the present petition to the official Liquidator and also to the Regional Director (Northern Region). Citation of the present petition was got published in "statesman" (English edition) and "veer Arjun" (Hindi Edition) both dated. 04. 2008. The copies of the newspapers" clipping showing publication of the citation and the proof of service of notices on the Official Liquidator and the Regional Director (Northern Region) have been placed on record.


(12) PURSUANT to the service of notices, a report dated 19. 05. 2008 has been filed by the Official Liquidator. The Official Liquidator has stated in his report that he has not received any complaint against the proposed scheme of amalgamation from any person/party interested in the scheme in any manner. He has further stated in his report that in his view the affairs of the transferor company do not appear to have been conducted in the manner which is prejudicial to the interest of its members, creditors or public interest in accordance with provisions of Section 394 (1) of the Companies Act, 1956.


(13) PURSUANT to the service of notice on the Regional Director (Northern region), he too has filed his report in the form of his affidavit sworn on 14. 05. 208 at Noida. In Para 4. 1 of the affidavit filed by the Regional Director (Northern Region), he has stated that Memorandum of Association of a company can be amended only after following the procedure prescribed under the relevant provisions of the Companies Act, 1956, which includes passing of special resolution by the members of the company in General Meeting and filing of relevant form with the office of the Registrar of Companies.


(14) IN para 8. 6. 5 of the proposed scheme of amalgamation, it is stated that the transferee company shall make consequential alterations to its Memorandum and Articles of Association for proper implementation of the proposed scheme, as necessary, including as to any changes in its authorized share capital. This court is of the view that the scheme of proceedings under Sections 391-394 give "single window clearance" and there is no reason to insist for a separate formality to be followed for amending the memorandum of association of the said company. However, the transferee company is required to file the necessary forms as prescribed under Law in the office of the Registrar of Companies to place on record the amendments in its Memorandum and Articles of Association. No other objection was raised on behalf of the Regional Director (Northern Region) to the sanction of the proposed scheme of amalgamation.


(15) IT is stated that the transferor company is a wholly owned subsidiary company of the transferee company. The proposed scheme of amalgamation provides that upon the scheme coming into effect and upon transfer and vesting of business and undertaking of the transferor company into the transferee company, the entire shares held by transferee company, including the shares held through its nominee, in the share capital of the transferor company shall stand cancelled and extinguished.


(16) IN view of the above, it is apparent that the scheme of amalgamation is aimed at to consolidate the transferor company and the transferee company into one large company with a strong assets base and the same would enable pooling of physical, financial and human resources of these companies for the most beneficial utilization of these factors in the combined entity. The arrangement mentioned in the proposed scheme of amalgamation will unlock the operational efficiencies and derive synergies in the combined business. The amalgamation of the transferor company with the transferee company would further create economies in administrative and managerial costs by consolidating operations and is likely to reduce substantial duplication of administrative responsibility and multiplicity of records and legal and regulatory compliances and thereby provide effective management and unified control of operations. The scheme of amalgamation also provides that on approval of the said scheme and its becoming effective, the transferor company shall stands dissolved without winding up.


(17) IN the facts and circumstances mentioned above, there does not appear to be any legal impediment in sanctioning the proposed scheme of amalgamation. Consequently, sanction is hereby granted to the pro

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posed scheme of amalgamation under Section 391 and 394 of the Companies Act, 1956 for amalgamation of the transferor company with the transferee company subject to the transferee company's filing the necessary forms as prescribed under Law in the office of the Registrar of Companies to place on record the amendments in its Memorandum and Articles of Association. The certified copy of this order shall be filed with the Registrar of Companies within five weeks. It is clarified that this order should not be construed as an order granting exemption from payment of stamp duty if payable in accordance with law in regard to increase in the share capital of the transferee company. Upon sanction becoming effective and from the appointed date, the transferor Company shall stands dissolved without its formal winding up. (18) THE transferee company is directed to deposit Rs. 20,000/- towards costs in the Common Pool Fund of the Official Liquidator within a period of three weeks from today. In view of the above, both this petition stands disposed of.
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