Full Judgment Text
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 193/2014
th
Reserved on 6 April, 2015
th
Date of pronouncement: 8 May, 2015
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):
And
Petition under Sections 391(2) & 394 of the
Companies Act, 1956
Scheme of Amalgamation of:
Efficient Frontier Technology India Private Limited
Non-Petitioner/Transferor Company
WITH
Adobe Systems India Private Limited
Petitioner/Transferee Company
Through Mr. Saurabh Leekha,
Advocate for the petitioners
Ms. Aparna Mudiam, Assistant
Registrar of Companies for the
Regional Director
SUDERSHAN KUMAR MISRA, J.
1. This petition has been filed under sections 391(2) & 394 of the
Companies Act, 1956 by the petitioner/transferee company seeking
sanction of the Scheme of Amalgamation of Efficient Frontier Technology
India Private Limited (hereinafter referred to as the transferor company)
with Adobe Systems India Private Limited (hereinafter referred to as the
petitioner/transferee company).
CP 193/2014 Page 1 of 7
2. The registered office of the petitioner/transferee company is
situated at New Delhi, within the jurisdiction of this Court. However, the
registered office of the transferor company is situated at Chennai, outside
the jurisdiction of this Court. Learned counsel for the petitioner submitted
that separate proceedings on behalf of the transferor company have
been filed in the High Court of Judicature at Madras for sanction of the
Scheme of Amalgamation.
3. The petitioner/transferee company was incorporated under the
th
Companies Act, 1956 on 30 July, 1997 with the Registrar of Companies,
NCT of Delhi & Haryana at New Delhi.
4. The present authorized share capital of the petitioner/transferor
company is Rs.1,25,00,00,000/- divided into 12,50,00,000 equity shares
of Rs.10/- each. The issued, subscribed and paid-up share capital of the
company is Rs.1,14,90,78,000/- divided into 11,49,07,800 equity shares
of Rs.10/- each.
5. Copies of the Memorandum and Articles of Association of the
transferor company and petitioner/transferee company have been filed on
record with the joint application, being CA(M) 32/2014, earlier filed by the
st
petitioner. The audited balance sheets, as on 31 March, 2013, of the
transferor company and petitioner/transferee company, along with the
report of the auditors, had also been filed.
CP 193/2014 Page 2 of 7
6. A copy of the Scheme of Amalgamation has been placed on record
and the salient features of the Scheme have been incorporated and
detailed in the petition and the accompanying affidavit. It is submitted by
the petitioner that the transferor and transferee companies are carrying
on the same business i.e. software development. It is claimed that the
proposed amalgamation enables combining and pooling of software
development, financial and other resources of the two companies
together for deriving optimum benefits. It is further claimed that the
amalgamation will result in increased financial strength and flexibility and
enhance the ability of the amalgamated entity to expand its activities,
thereby contributing to enhancement of future business potential.
7. So far as the share exchange ratio is concerned, the Scheme
provides that, upon coming into effect of this Scheme, the
petitioner/transferee company shall issue and allot equity shares to the
shareholders of the transferor company in the following ratio:
“21 equity shares of Rs.10/- each of the transferee company,
credited as fully paid up, for every 01 equity share of Rs.10/-
each held by the shareholders in the transferor company.”
8. It has been submitted by the petitioner that no proceedings under
Sections 235 to 251 of the Companies Act, 1956 are pending against the
petitioner/transferee company.
CP 193/2014 Page 3 of 7
9. The Board of Directors of the petitioner/transferee company, by
th
Circulation on 20 January, 2014, have unanimously approved the
proposed Scheme of Amalgamation. A copy of the Resolution passed by
the Board of Directors of the petitioner/transferee company had been
placed on record.
10. The petitioner/transferee company had earlier filed CA (M) No.
32/2014 seeking directions of this court to dispense with the requirement
of convening the meetings of its equity shareholders, secured and
unsecured creditors, which are statutorily required for sanction of the
st
Scheme of Amalgamation. Vide order dated 21 February, 2014, this
court allowed the application and dispensed with the requirement of
convening and holding the meeting of the equity shareholders of the
petitioner/transferee company, there being no secured or unsecured
creditors of the petitioner company, to consider and, if thought fit,
approve, with or without modification, the proposed Scheme of
Amalgamation.
11. The petitioner/transferee company has thereafter filed the present
petition seeking sanction of the Scheme of Amalgamation. Vide order
st
dated 21 March, 2014, notice in the petition was directed to be issued to
the Regional Director, Northern Region, and the Official Liquidator.
Citations were also directed to be published in 'Business Standard'
th
(English) and (Hindi) editions. Thereafter, vide order dated 11
CP 193/2014 Page 4 of 7
September, 2014, in view of the fact that the transferor company had filed
the petition before the High Court of Judicature at Madras since its
registered office is in Chennai, it was held that no notice was required to
be issued to the Official Liquidator and no response is required from him.
Affidavit of service has been filed by the petitioner showing compliance
regarding service on the Regional Director, Northern Region, and also
rd
regarding publication of citations in the aforesaid newspapers on 3 July,
2014. Copies of the newspaper clippings containing the publications have
been filed along with the said affidavit.
12. In response to the notices issued in the petition, Mr. A. K.
Chaturvedi, Regional Director, Northern Region, Ministry of Corporate
th
Affairs has filed his report dated 24 July, 2014. Relying on Clause 7.1 of
Part-III of the Scheme, he has stated that, upon sanction of the Scheme
of Amalgamation, all the employees of the transferor company shall
become the employees of the transferee company without any break or
interruption in their services.
13. Although no objection has been raised by the Regional Director,
but in Para 4 of his report, he has submitted that on perusal of the
shareholding pattern of both the companies, it has been observed that all
the shares are held by foreign companies. He, therefore, prayed that the
petitioner company may be asked to give an undertaking for all
compliances from Reserve Bank of India as required under FEMA for
CP 193/2014 Page 5 of 7
above transactions involving foreign banks/entities. Further, in para 5 of
the report, he has pointed out that the petitioner has not filed the requisite
e-form 32 (DIR 12) regarding regularization of their Additional Director,
namely Sh. Raman Nagpal. In reply to the aforesaid, the petitioner has
undertaken to comply with the statutory provisions under the FEMA and
the RBI Act, and the rules and regulations framed thereunder. The same
is accepted and the petitioner shall remain bound by the same. The
Assistant Registrar of Companies has submitted that the petitioner has
also filed the relevant e-form 32 (DIR 12) with regard to the Director, Sh.
Raman Nagpal for regularization of his directorship. In view of the
aforesaid, the observations raised by the Regional Director, Northern
Region stand satisfied.
14. No objection has been received to the Scheme of Amalgamation
th
from any other party. The petitioner companies, in the affidavits dated 9
September, 2014 of Mr. Naresh Chand Gupta, authorized signatory of
the petitioner/transferee company, have submitted that neither the
petitioner companies nor their counsel have received any objection
rd
pursuant to the citations published in the newspapers on 3 July, 2014.
15. Considering the approval accorded by the equity shareholders and
creditors of the petitioner companies to the proposed Scheme of
Amalgamation and the affidavits filed by the Regional Director, Northern
Region not raising any objection to the proposed Scheme of
CP 193/2014 Page 6 of 7
Amalgamation, there appears to be no impediment to the grant of
sanction to the Scheme of Amalgamation. Consequently, subject to
sanction of the Scheme of Amalgamation in respect of the transferor
company from the court of competent jurisdiction, sanction is hereby
granted to the Scheme of Amalgamation under Sections 391 and 394 of
the Companies Act, 1956. The petitioner company will comply with the
statutory requirements in accordance with law. Certified copy of this order
be filed with the Registrar of Companies within 30 days. It is also clarified
that this order will not be construed as an order granting exemption from
payment of stamp duty as payable in accordance with law. The sanction
st
will be effective from the appointed date of amalgamation, that is 1 April,
2013.
16. The petition is allowed in the above terms.
Dasti.
SUDERSHAN KUMAR MISRA, J.
May 08, 2015
CP 193/2014 Page 7 of 7
COMPANY PETITION NO. 193/2014
th
Reserved on 6 April, 2015
th
Date of pronouncement: 8 May, 2015
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):
And
Petition under Sections 391(2) & 394 of the
Companies Act, 1956
Scheme of Amalgamation of:
Efficient Frontier Technology India Private Limited
Non-Petitioner/Transferor Company
WITH
Adobe Systems India Private Limited
Petitioner/Transferee Company
Through Mr. Saurabh Leekha,
Advocate for the petitioners
Ms. Aparna Mudiam, Assistant
Registrar of Companies for the
Regional Director
SUDERSHAN KUMAR MISRA, J.
1. This petition has been filed under sections 391(2) & 394 of the
Companies Act, 1956 by the petitioner/transferee company seeking
sanction of the Scheme of Amalgamation of Efficient Frontier Technology
India Private Limited (hereinafter referred to as the transferor company)
with Adobe Systems India Private Limited (hereinafter referred to as the
petitioner/transferee company).
CP 193/2014 Page 1 of 7
2. The registered office of the petitioner/transferee company is
situated at New Delhi, within the jurisdiction of this Court. However, the
registered office of the transferor company is situated at Chennai, outside
the jurisdiction of this Court. Learned counsel for the petitioner submitted
that separate proceedings on behalf of the transferor company have
been filed in the High Court of Judicature at Madras for sanction of the
Scheme of Amalgamation.
3. The petitioner/transferee company was incorporated under the
th
Companies Act, 1956 on 30 July, 1997 with the Registrar of Companies,
NCT of Delhi & Haryana at New Delhi.
4. The present authorized share capital of the petitioner/transferor
company is Rs.1,25,00,00,000/- divided into 12,50,00,000 equity shares
of Rs.10/- each. The issued, subscribed and paid-up share capital of the
company is Rs.1,14,90,78,000/- divided into 11,49,07,800 equity shares
of Rs.10/- each.
5. Copies of the Memorandum and Articles of Association of the
transferor company and petitioner/transferee company have been filed on
record with the joint application, being CA(M) 32/2014, earlier filed by the
st
petitioner. The audited balance sheets, as on 31 March, 2013, of the
transferor company and petitioner/transferee company, along with the
report of the auditors, had also been filed.
CP 193/2014 Page 2 of 7
6. A copy of the Scheme of Amalgamation has been placed on record
and the salient features of the Scheme have been incorporated and
detailed in the petition and the accompanying affidavit. It is submitted by
the petitioner that the transferor and transferee companies are carrying
on the same business i.e. software development. It is claimed that the
proposed amalgamation enables combining and pooling of software
development, financial and other resources of the two companies
together for deriving optimum benefits. It is further claimed that the
amalgamation will result in increased financial strength and flexibility and
enhance the ability of the amalgamated entity to expand its activities,
thereby contributing to enhancement of future business potential.
7. So far as the share exchange ratio is concerned, the Scheme
provides that, upon coming into effect of this Scheme, the
petitioner/transferee company shall issue and allot equity shares to the
shareholders of the transferor company in the following ratio:
“21 equity shares of Rs.10/- each of the transferee company,
credited as fully paid up, for every 01 equity share of Rs.10/-
each held by the shareholders in the transferor company.”
8. It has been submitted by the petitioner that no proceedings under
Sections 235 to 251 of the Companies Act, 1956 are pending against the
petitioner/transferee company.
CP 193/2014 Page 3 of 7
9. The Board of Directors of the petitioner/transferee company, by
th
Circulation on 20 January, 2014, have unanimously approved the
proposed Scheme of Amalgamation. A copy of the Resolution passed by
the Board of Directors of the petitioner/transferee company had been
placed on record.
10. The petitioner/transferee company had earlier filed CA (M) No.
32/2014 seeking directions of this court to dispense with the requirement
of convening the meetings of its equity shareholders, secured and
unsecured creditors, which are statutorily required for sanction of the
st
Scheme of Amalgamation. Vide order dated 21 February, 2014, this
court allowed the application and dispensed with the requirement of
convening and holding the meeting of the equity shareholders of the
petitioner/transferee company, there being no secured or unsecured
creditors of the petitioner company, to consider and, if thought fit,
approve, with or without modification, the proposed Scheme of
Amalgamation.
11. The petitioner/transferee company has thereafter filed the present
petition seeking sanction of the Scheme of Amalgamation. Vide order
st
dated 21 March, 2014, notice in the petition was directed to be issued to
the Regional Director, Northern Region, and the Official Liquidator.
Citations were also directed to be published in 'Business Standard'
th
(English) and (Hindi) editions. Thereafter, vide order dated 11
CP 193/2014 Page 4 of 7
September, 2014, in view of the fact that the transferor company had filed
the petition before the High Court of Judicature at Madras since its
registered office is in Chennai, it was held that no notice was required to
be issued to the Official Liquidator and no response is required from him.
Affidavit of service has been filed by the petitioner showing compliance
regarding service on the Regional Director, Northern Region, and also
rd
regarding publication of citations in the aforesaid newspapers on 3 July,
2014. Copies of the newspaper clippings containing the publications have
been filed along with the said affidavit.
12. In response to the notices issued in the petition, Mr. A. K.
Chaturvedi, Regional Director, Northern Region, Ministry of Corporate
th
Affairs has filed his report dated 24 July, 2014. Relying on Clause 7.1 of
Part-III of the Scheme, he has stated that, upon sanction of the Scheme
of Amalgamation, all the employees of the transferor company shall
become the employees of the transferee company without any break or
interruption in their services.
13. Although no objection has been raised by the Regional Director,
but in Para 4 of his report, he has submitted that on perusal of the
shareholding pattern of both the companies, it has been observed that all
the shares are held by foreign companies. He, therefore, prayed that the
petitioner company may be asked to give an undertaking for all
compliances from Reserve Bank of India as required under FEMA for
CP 193/2014 Page 5 of 7
above transactions involving foreign banks/entities. Further, in para 5 of
the report, he has pointed out that the petitioner has not filed the requisite
e-form 32 (DIR 12) regarding regularization of their Additional Director,
namely Sh. Raman Nagpal. In reply to the aforesaid, the petitioner has
undertaken to comply with the statutory provisions under the FEMA and
the RBI Act, and the rules and regulations framed thereunder. The same
is accepted and the petitioner shall remain bound by the same. The
Assistant Registrar of Companies has submitted that the petitioner has
also filed the relevant e-form 32 (DIR 12) with regard to the Director, Sh.
Raman Nagpal for regularization of his directorship. In view of the
aforesaid, the observations raised by the Regional Director, Northern
Region stand satisfied.
14. No objection has been received to the Scheme of Amalgamation
th
from any other party. The petitioner companies, in the affidavits dated 9
September, 2014 of Mr. Naresh Chand Gupta, authorized signatory of
the petitioner/transferee company, have submitted that neither the
petitioner companies nor their counsel have received any objection
rd
pursuant to the citations published in the newspapers on 3 July, 2014.
15. Considering the approval accorded by the equity shareholders and
creditors of the petitioner companies to the proposed Scheme of
Amalgamation and the affidavits filed by the Regional Director, Northern
Region not raising any objection to the proposed Scheme of
CP 193/2014 Page 6 of 7
Amalgamation, there appears to be no impediment to the grant of
sanction to the Scheme of Amalgamation. Consequently, subject to
sanction of the Scheme of Amalgamation in respect of the transferor
company from the court of competent jurisdiction, sanction is hereby
granted to the Scheme of Amalgamation under Sections 391 and 394 of
the Companies Act, 1956. The petitioner company will comply with the
statutory requirements in accordance with law. Certified copy of this order
be filed with the Registrar of Companies within 30 days. It is also clarified
that this order will not be construed as an order granting exemption from
payment of stamp duty as payable in accordance with law. The sanction
st
will be effective from the appointed date of amalgamation, that is 1 April,
2013.
16. The petition is allowed in the above terms.
Dasti.
SUDERSHAN KUMAR MISRA, J.
May 08, 2015
CP 193/2014 Page 7 of 7