2015 (5) TMI 731 - HC - Companies Law

Application for Scheme of Amalgamation under Sections 391(1), 393 & 394 read with Sections 100 to 104 of the Companies Act, 1956 - Regional Director s observations regarding Appointment date and Sectoral cap under FDI policy duly addressed - Held that - In reply to the first observation regarding appointment date, it was submitted by the petitioner companies in the affidavit dated 23rd March, 2015 of Sh. Ki Ho Park, authorized representative of the petitioner companies that between 31st March, 2014 (i.e. the date of audited accounts) and 1st May, 2014 (i.e. the appointed date of amalgamation), there has been no material financial changes in the accounts of the transferor and transferee companies apart from the investment by Hitachi Metals Singapore Pte. Limited and Namyang Metals Company Limited and, consequently, the deferred tax has been written off to the extent of carried forward losses. It is further submitted that the joint valuation report submitted along with CA(M) 115/2014 takes into account the investment by Hitachi Metals Singapore Pte. Limited of ₹ 11,71,37,280/- in the transferor company; of ₹ 12,53,66,464/- in the transferee company; and the investment of Namyang Metals Company Limited of ₹ 17,57,05,920/- in the transferor company; and of ₹ 18,80,49,696/- in the transferee company for the purpose of conducting the valuation as on 30th April, 2014 and the consequent adjustments made in the deferred tax carried in the books. Therefore, the said investment does not have any adverse effect on the proposed Scheme of Amalgamation. In reply to second observation regarding Sectoral Cap of FDI policy, it was submitted by the petitioner companies that at present the foreign shareholders are holding 51% of paid-up share capital of the transferee company and remaining 49% is held by the resident shareholders, and the current shareholding held by the foreign shareholders are within the permitted sectoral cap under the provisions of Foreign Direct Investment Policy (FDI) issued by RBI i.e. upto 100% FDI under the automatic route. The transferee company undertakes that subsequent to sanction of the Scheme, the allotment of shares to the shareholders of the transferor company including allotment of shares to the foreign shareholders will continue to be within the permitted sectoral cap under the FDI. The Assistant Registrar of Companies has stated that after considering the reply of the petitioner, the Regional Director had no further objections. In view of the aforesaid, the observations raised by the Regional Director stand satisfied. Considering the approval accorded by the shareholders and creditors of the petitioner companies to the proposed Scheme of Amalgamation and the affidavits filed by the Regional Director, Northern Region, and the Official Liquidator not raising any objection to the proposed Scheme of Amalgamation, there appears to be no impediment to the grant of sanction to the Scheme of Amalgamation. Consequently, sanction is hereby granted to the Scheme of Amalgamation under Sections 391 and 394 read with Section 100 of the Companies Act, 1956. - Application for scheme of amalgamation approved.

Issues Involved:
1. Jurisdiction and incorporation details of the transferor and transferee companies.
2. Authorized and paid-up share capital of the companies.
3. Scheme of Amalgamation and its benefits.
4. Share exchange ratio.
5. Compliance with legal proceedings and approvals.
6. Meetings and approvals by shareholders and creditors.
7. Notices and publication compliance.
8. Reports and observations by the Official Liquidator and Regional Director.
9. Financial changes and compliance with FDI policy.
10. Objections and approvals by relevant authorities.
11. Sanction and statutory compliance.
12. Costs imposed on petitioner companies.

Issue-wise Detailed Analysis:

1. Jurisdiction and Incorporation Details:
The registered offices of both the transferor and transferee companies are situated in New Delhi, within the jurisdiction of this court. The transferor company was incorporated on 29th December, 2004, and the transferee company was originally incorporated on 12th January, 2005, with multiple name changes and relocation of its registered office to Delhi.

2. Authorized and Paid-up Share Capital:
As of 31st March, 2014, the transferor company had an authorized share capital of Rs. 18,88,78,000/- and an issued, subscribed, and paid-up share capital of the same amount. The transferee company's authorized share capital was Rs. 54,67,45,000/- with an issued, subscribed, and paid-up share capital of the same amount.

3. Scheme of Amalgamation and Its Benefits:
The Scheme of Amalgamation aims to create a fully integrated single entity in the automobile castings sector, leveraging financial resources, managerial, technical, and marketing expertise from both companies. The amalgamation is expected to enhance revenue and profit potential, provide synergistic linkages, and achieve economies of scale.

4. Share Exchange Ratio:
The Scheme provides that the transferee company will issue and allot 27 equity shares of Rs. 10/- each fully paid up for every 10 equity shares of Rs. 10/- each fully paid up held by the shareholders in the transferor company.

5. Compliance with Legal Proceedings and Approvals:
The petitioners submitted that no proceedings under Sections 235 to 251 of the Companies Act, 1956, are pending against the transferor and transferee companies. The Board of Directors of both companies unanimously approved the Scheme in their meetings held on 14th May, 2014.

6. Meetings and Approvals by Shareholders and Creditors:
The Court dispensed with the requirement of convening meetings of secured creditors and directed separate meetings of equity shareholders and unsecured creditors. The Scheme was unanimously approved by the equity shareholders and unsecured creditors in meetings held on 30th October, 2014.

7. Notices and Publication Compliance:
Notice of the petition was issued to the Regional Director and the Official Liquidator, with citations published in 'Indian Express' and 'Dainik Bhaskar' on 26th December, 2014. The petitioners complied with the service of notices to secured creditors.

8. Reports and Observations by the Official Liquidator and Regional Director:
The Official Liquidator reported no complaints against the Scheme and stated that the transferor company's affairs were not conducted prejudicially. The Regional Director noted that employees of the transferor company would become employees of the transferee company without interruption and that the accounting treatment would comply with Accounting Standard-14.

9. Financial Changes and Compliance with FDI Policy:
The Regional Director highlighted the need for an undertaking regarding no material changes from 01.04.2014 to 30.04.2014. The petitioner companies confirmed no material financial changes apart from investments by Hitachi Metals Singapore Pte. Limited and Namyang Metals Company Limited. They assured compliance with FDI policy, with foreign shareholders holding 51% of the transferee company's paid-up share capital.

10. Objections and Approvals by Relevant Authorities:
No objections were received from any party. The Regional Director and Official Liquidator did not raise any further objections after considering the petitioners' replies.

11. Sanction and Statutory Compliance:
The Court granted sanction to the Scheme of Amalgamation under Sections 391 and 394 read with Section 100 of the Companies Act, 1956. The transferor company will stand dissolved without winding up upon the Scheme's effective date, 1st May, 2014. The order does not exempt payment of stamp duty.

12. Costs Imposed on Petitioner Companies:
The Court imposed costs of Rs. 1.0 lakh each on the petitioner companies, to be deposited in the Common Pool Fund of the Official Liquidator within one week.

Conclusion:
The petition is allowed, and the Scheme of Amalgamation is sanctioned with the petitioner companies required to comply with statutory requirements and deposit the imposed costs.

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