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TMI Blog2021 (2) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... ssuance of notices against the Petitioner-Company and passing impugned order dated 25.2.2010. Present case is acquisition of another company by way of amalgamation/merger and change of name of acquiring company, i.e. Lessee to the name of acquired company. Clause-2(v)(a) of Lease Deed, nowhere prohibits the lessee from changing its name. It does not contemplate a condition to have permission, muchless previous in writing permission, to change the name of lessee or to acquire any other company by way of amalgamation - In present case, assets of lessee have not been transferred to any other company but assets of another company have been transferred in favour of lessee. Previous consent for filing amalgamation petition, acquiring any other Company by lessee is not warranted under Clause-2(v)(a). Had it been a merger of lessee in any other company alongwith its assets, provisions of Clause-2(v)(a) of Lease Deed might have been attracted, but factual matrix is not so in present case. Thus, action of HIMUDA is misconceived. M/s Mahle Filter Systems India Ltd. is none else but the M/s Purolator India Ltd. and HIMUDA is not entitled to claim 50% unearned increase of ₹ 15,80,97 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 956 and registered as Public Limited Company in the year 1966, resulting into issuance of Certificate of Incorporation dated 16.4.1966, Annexure-2, in its favour by Registrar of Companies, Punjab and Himachal Pradesh. 4. M/s Purolator India Ltd. was allotted two industrial Plots No.14 15 in Sector-1, Parwanoo, by the then Himachal Pradesh Housing Board (now HIMUDA) on 12.9.1975 and 7.5.1977 respectively, on a Long Term Lease of 95 years, whereupon M/s Purolator India Ltd. established its manufacturing facilities Unit-1 and Unit-2. 5. In the year 2007, a Company namely M/s Mahle Filter Systems India (P) Ltd. presented a scheme in the High Court of Delhi for amalgamating itself with M/s Purolator India Ltd. and proposing thereby that all assets and liabilities of the Transferor Company, i.e. M/s Mahle Filter Systems India (P) Ltd. were to be transferred and vested in Transferee Company, i.e. M/s Purolator India Ltd., with further condition that M/s Purolator India Ltd. shall change its name to M/s Mahle Filter Systems India Ltd., by following the prescribed procedure under the Companies Act, 1956. 6. Aforesaid Amalgamation Scheme was sanctioned by the High Court of Delhi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olator India Ltd. with M/s Mahle Filter Systems India Ltd. 10. M/s Mahle Filter Systems India Ltd., vide communication dated 20.1.2009 responded to communication dated 14.11.2008, informing that neither M/s Purolator India Ltd. had merged with M/s Mahle Filter Systems India Ltd. nor its business was vested in another company and to substantiate and reflect the correct position, copy of order dated 27.5.2008 passed by High Court of Delhi, approving the Scheme of Arrangement of Amalgamation of M/s Mahle Filter Systems India (P) Ltd. with erstwhile M/s Purolator India Ltd. and consequent change of name of company to M/s Mahle Filter Systems India Ltd. alongwith Scheme of Arrangement of Amalgamation as submitted before the High Court of Delhi and copy of the petition filed therein were also supplied alongwith this communication. 11. Vide communication dated 10.2.2009, HIMUDA, through its CEO-cum-Secretary, had asked the Petitioner- Company to supply some other documents, which, in turn, were supplied to HIMUDA, vide communication dated 15.6.2009, Annexure-12. After concluding that it appeared that leasehold rights of Industrial Plots No.14 15 had been transferred by M/s Purolat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t weeks from the date of passing of the order, after taking into consideration contents of the reply filed by the Petitioner-Company to the notice and also considering the provisions of Transfer of Property Act, 1882, Companies Act, 1956 and Terms and Conditions of the Lease. Liberty was also granted to the Petitioner-Company to depute its representative, in case it was so desired, to be heard in person. 14. Consequent to the aforesaid events, impugned order dated 25.2.2010, Annexure-1, under challenge in present petition, was passed. 15. Relevant Condition No.2(v)(a), contained in the Lease Deed, relevant for adjudication of the matter, is as under: 2(v)(a) The lessee shall not sell, transfer, assigns or otherwise part with the possession of the whole or any art of the industrial plot except with the previous consent is writing of the parties which he shall be entitled to effuse in the absolute discretion. PROVIDED that such consent shall not be given for a period of ten years from the commencement of this lease unless, in the opinion of the Lessor, exceptional circumstances exist for the grant of such consent. PROVIDED FURTHER that, in the event of the consent bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urolator India Ltd., wherein M/s Mahle Filter Systems India (P) Ltd. was Transferor Company whereas M/s Purolator India Ltd. was Transferee Company and in this decision sanction was granted to the proposed scheme for amalgamation of Transferor Company with the Transferee Company and Scheme of Amalgamation was approved with effect from appointed date, i.e. 1.4.2007, with following order: 1. That all the property, rights and powers of the Transferor Company specified in the First, Second and Third parts of the Schedule-II hereto and all other property, rights and powers of the Transferor Company be transferred without further act or deed to the Transferee Company and accordingly the same shall pursuant to Section 394(2) of the Companies Act, 1956 be transferred to and vest in the Transferee Company for all the estate and interest of the Transferor Company therein but subject nevertheless to all charges now affecting the same; and 2. That all the liabilities and duties of the Transferor Company be transferred without further act or deed to the Transferee Company and accordingly the same shall pursuant to Section 394(2) of the Companies Act, 1956 be transferred to and become the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Ltd., whereas M/s Purolator India Ltd. was incorporated and registered as Public Limited Company and after amalgamation/merger, M/s Purolator India Ltd. was renamed as M/s Mahle Filter Systems India Ltd., but not as M/s Mahle Filter Systems India Private Ltd., for the reason that M/s Mahle Filter Systems India (P) Ltd. stood dissolved after its merger in M/s Purolator India Ltd., which was a Public Limited Company, and was re-named as M/s Mahle Filter Systems India Ltd. It has been informed that it remained Public Limited Company till 2015. The lis in present petition is pertaining to the period prior to 2010. The constitution of the renamed company, at relevant point of time was as a Public Limited. However, this description was overlooked by HIMUDA, as in their communication, notices and orders, particularly communication dated 10.9.2009 (Annexure-10); and notice dated 2.12.2009 (Annexure-14), HIMUDA had considered and addressed the Petitioner-Company as M/s Mahle Filter Systems India Private Ltd. and, thus, it appears that due to resemblance of name of two different companies, one of which was Private Limited and another was Public Limited, Officers and officials of HIMUD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 6.11.2009 and 4.10.2008 respectively, had also miscommunicated that M/s Purolator India Ltd. has merged with M/s Mahle Filter Systems India Ltd. and business of M/s Purolator India Ltd. has vested in M/s Mahle Filter Systems India Ltd., whereas fact was and is that M/s Mahle Filter Systems India (P) Ltd. had merged in M/s Purolator India Ltd. and thereafter name of M/s Purolator India Ltd. has been changed to M/s Mahle Filter Systems India Ltd. 23. Clause-2(v)(a) of Lease Deed mandates recovery of unearned increase for breach of this clause whereby a bar has been put on the lessee on selling, transferring, assigning or otherwise parting with possession of the whole or any part of Industrial Plots, except, in writing previous consent of parties. On change of name of A from X to Y , the person A remains the same and, thus, property of A also remains with A but with changed name and, thus, change of name of A from X to Y does not amount to selling, transferring, assigning or otherwise parting with possession of the property of A to some other person. Therefore, in present case, HIMUDA has wrongly invoked this condition for issuance of notices against the Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Certificate (NOC) for sanction and release of Power Load to Petitioner-Company from Himachal Pradesh State Electricity Board (HPSEB), on the ground that M/s Mahle Filter Systems India Ltd. is in unauthorized use and occupation of Industrial Plots No.14 15, referred supra. Petitioner has also sought direction, in the nature of mandamus, to HIMUDA to issue an NOC to the Petitioner-Company with further direction to Director of Industries not to withhold/delay the issuance of Certificate of Commencement of Production, on the ground that load connection has not been sanctioned. 28. HIMUDA is contesting this petition on the basis of averments made in response to CWP No.888 of 2010. Director of Industries has not filed any reply, rather, as noticed supra, has recommended for change of name in the allotment of Industrial Plots in favour of M/s Mahle Filter Systems India Ltd. 29. HPSEB has contested this petition, by filing reply, wherein main objection taken is that a new connection has been sought to be sanctioned and released in favour of Petitioner-Company in Industrial Plots No.14 15, in the name of M/s Mahle Filter Systems India Ltd. whereas, as per record of HPSEB M/s Purol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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