In Re: Disha Retail Fixtures Private Limited

A.S. Bopanna, J.—The petitioner in Co. P. No. 149/2012 is the Transferee Company while the petition in Co. P. No. 152/2012 is the Transferor Company. They are before this Court seeking sanction of the scheme of amalgamation at Annexure-G to the petitions.

The Transferee company was incorporated on 30.08.2004 while the Transferor company was incorporated on 27.05.1996. For better utilization of the resources, a scheme of amalgamation has been formulated and the Board of the petitioner-company considered the scheme and approved the same on 08.08.2011. The petitioner herein at the first instance were before this Court in C.A. Nos. 599/2012 and 601/2012 seeking dispensation of convening of meeting of the shareholders and creditors of the company as they had already consented to the scheme. This Court by the order dated 07.06.2012 had permitted the same. Pursuant thereto, the instant petitions have been filed.

This Court had directed notice to the Registrar of Companies in both these petitions and notice was ordered to the Official Liquidator in respect of the Transferor Company. The publication of filing of the petition was also ordered to be taken out in the newspapers which has been carried out. Insofar as the shareholders, creditors or any other person interested in the affairs of the company, there is no objection put forth to the consideration of these petitions for the purpose of approval of the scheme.

Insofar as the Transferor company, the Official Liquidator at the first instance had sought appointment of the Chartered Accountant to verify the books of accounts of the company. Accordingly, M/s. Mani Kumari & Chandrakala, Chartered Accountants were appointed for the said purpose. Based on the report submitted by the Chartered Accountants, the Official Liquidator has filed OLR No. 456/2013. A perusal of the same would indicate that the Chartered Accountants have indicated that the affairs of the company had not been conducted in any manner prejudicial to the interest of members or to that of public interest. In that view, the Official Liquidator has indicated that there is no observation to be made with regard to the scheme as has been sought for approval.

The Registrar of Companies on behalf of the Regional Director has filed the affidavit dated 04.07.2013 wherein certain observations have been made. The first observation relates to the indication of 776 equity shares of Rs. 10/- each of the Transferee Company and therefore, the objection with regard to the share exchange ratio has been raised. Further, with reference to paragraph 12.1.2 of the scheme, the amount indicated therein at Rs. 3099 has been referred and the clarifications on indicating the said amount has been raised. Since such affidavit has been filed in both these petitions, the petitioners have filed their affidavit dated 28.02.2014 clarifying that aspect of the matter.

With regard to the share exchange ratio, a clarification has been indicated with regard to the valuation of the shareholders and the manner in which it has been provided and therefore, it has been indicated that the share exchange ratio in the scheme is justified. Insofar as the objection raised with regard to the amount as stated therein, appropriate amendment has been made to the scheme. Pursuant thereto, an application seeking to permit the amendment of the scheme was made before this Court and this Court by the order dated 07.03.2014 has already permitted the amendment to the scheme and the amended scheme has been filed along with a memo dated 26.03.2014. The Regional Director/Registrar of Companies has not raised any further queries subsequent to the clarification being furnished.

In the said circumstance, a perusal of the scheme would indicate that the company had taken into consideration the mutual interest of the shareholders and employees of the companies and accordingly provision has been made and the right of the creditors has also not been affected. That apart, the official respondents have not raised any other queries pursuant to the clarification being provided and the appropriate scheme being filed before this Court. In that view of the matter, the petitioners are entitled to the grant of relief as prayed herein.

In the result, the following:

ORDER

(i) Co. P. No. 149/2012 and Co. P. No. 152/2012 are allowed.

(ii) The scheme of amalgamation at Annexure-A (amended scheme produced along with memo dated 25.03.2014) is sanctioned so as to bind the shareholders, members and creditors of the companies.

(iii) The Transferor company named above, shall stand dissolved without the process of winding up.

(iv) A copy of this order shall be filed with the Registrar of Companies within thirty days from the date of receipt of the copy.