Allowed

Harbinger Software Private Limited v. -

Bombay HC31 Oct 2014CSP/349/2014

Case brief

AI extract

What is this about?

The Court allowed the Scheme of Amalgamation between Harbinger Software Private Limited and Harbinger Systems Private Limited. Finding the scheme fair, reasonable, and compliant with statutory requirements, the Court made the petition absolute and directed registration with the Registrar of Companies.

What did the court decide?

Company Scheme Petition No. 349 of 2014 was made absolute; directions issued regarding stamp duty adjudication and registration with the Registrar of Companies.

Harbinger Software Private Limited Vs - — Succession and Inheritance | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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COMPANY SCHEME PETITION NO. 349 OF 2014

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CONNECTED WITH

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COMPANY SUMMONS FOR DIRECTION NO. 184 OF 2014

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Harbinger Software Private Limited …Petitioner/ Transferor Company In the matter of Companies Act, 1956 (1 of 1956)

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AND

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In the matter of Section 391 & 394 of Companies Act, 1956.

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AND

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In the matter of Scheme of Amalgamation of Harbinger Software Private Limited

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WITH

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Harbinger Systems Private Limited

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AND

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Their Respective Shareholders

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Called for Hearing

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Ms. Prachi Manekar a/w Ms. Shruti Kelji, Advocates for the Petitioner Mr. C. J. Joy with Ms. Anamika Malhotra i/b H.P. Chaturvedi for the Regional Director for the Company Scheme Petition.

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Mr. S. Ramakantha, Official Liquidator present in Company Scheme Petition No. 349 Of 2014

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CORAM: S.J. Kathawalla, J DATE: 31^st October 2014

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P.C :-

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Heard Counsel for the parties. No objector has come before the court to oppose the Scheme nor any party has controverted any averments

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made in the Petition.

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The sanction of the Court is sought under Section 391 to 394 of the Companies Act, 1956 to a Scheme of Amalgamation of Harbinger Software Private Limited with Harbinger Systems Private Limited and their respective shareholders.

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Learned Counsel for the Petitioner states that the Petitioner Transferor company is engaged in the business of creating portals and content delivery platforms for publishing and communicating information to the organisation, workflow creation for processes in large enterprise systems, performance testing of critical enterprise systems during the peak usage times such as employee performance reviews or benefits open enrollment and implementation and acustamization of open source enterprise systems and solutions. The learned Counsel for the Petitioner states that the Transferee Company is engaged in the business of creating portals and content delivery platforms for publishing and communicating information to the organisation workflow creation for processes in large enterprise systems, performance testing of critical enterprise systems during the peak usage times such as employee performance reviews or benefits open enrollment and implementation and acustomization of open source enterprise systems and solutions.

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The proposed scheme will have the benefit of greater capital and capital investments for the amalgamated entity, better customer service by the amalgamated entity, better operational efficiency and achievement of value creation for the amalgamated entity. Also the amalgamation will result in economies of scale and reduction in overheads, managerial and other expenditure, operational rationalization and optimum utilization of various resources. The amalgamation shall further lead to administrative and operational rationalization, organisational efficiencies, reduction in overheads and other expenses, optimal utilization of various resources and

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prevention of cost duplication and the resultant operations would be substantially cost-efficient for the amalgamated entity. The proposed amalgamation will also reduce duplication of various operating, managerial and administrative functions for the amalgamated entity. The amalgamated entity would gain greater value for stakeholders than could be delivered as separated companies. Also the amalgamation would place the amalgamated entity in a better position to counter the competitive environment of the industry.

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The Learned Advocate for the Petitioner Company states that the Petitioner Company is a wholly owned subsidiary of the Transferee Company viz. Harbinger Systems Private Limited and no new shares are required to be issued to the members of the Petitioner Company and the same will stand cancelled and in view of the judgement of this Hon’ble Court in Mahaamba Investment Limited vs. IDI Limited (2001) Company Cases 105 filing of a separate Company Summons for Direction and Company Scheme Petition for sanction of the scheme by Harbinger Systems Private Limited, Transferee Company was dispensed with vide order dated 28^th March, 2014 passed in Company Summons for Direction no. 184 of 2014.

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The Petitioner Companies have approved the Scheme of Amalgamation by passing Board Resolutions which are annexed to the respective Company Scheme Petition.

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The Learned Counsel for the Petitioner further states that the Petitioner Company had complied with all the directions of the Company Summons for Direction and that the Company Scheme Petition has been filed in consonance with the order of the passed in the said Summons for Direction.

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The Learned Counsel appearing on behalf of the Petitioner has stated that the Petitioner has complied with all the requirements as per the directions of this Hon’ble Court and has filed the necessary affidavit of

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compliance in the Court. Moreover, the Petitioner Company through its Counsel undertakes to comply with all the statutory requirements, if any, as required under the Companies Act, 1956/2013 and the Rules made thereunder. The said undertaking is accepted.

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The Regional Director has filed an affidavit on 4^th September, 2014, stating therein, save and except as stated in para 6, it appears that the scheme is not prejudicial to the interest of shareholders and public. The aforesaid paragraph 6 reads as under:

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“ That the Deponent further submits that, the Tax issue if any arising out of this scheme shall be subject to final decision of Income Tax Authority and approval of the scheme by Hon'ble High Court may not deter the Income Tax Authority to scrutinize the tax returns filed by the petitioner Company after giving effect to the amalgamation. The decision of the Income Tax Authority is binding on the petitioner company.”

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As far as observations made in para 6 of the Affidavit of the Regional Director are concerned, the Petitioner Company is bound to comply with all applicable provisions of the Income Tax Act and all tax issues arising out of the scheme will be met and answered in accordance with the law.

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The Learned Counsel for the Regional Director on instructions of Mr. Chandana Muthu Joint Director (Legal) in the office of the Regional Director states that they are satisfied with the undertakings given by the Transferee Company. The said undertakings given by Transferee Company are accepted.

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The Official Liquidator has filed his report on 8^th October 2014 in Company Scheme Petition No. 349 of 2014, stating therein that the affairs of the Transferor Company has been conducted in a proper manner and that the Transferor Company may be ordered to be dissolved.

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From the material on record, the Scheme appears to be fair and

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reasonable and is not violative of any provisions of law and is not contrary to public policy.

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Since all requisite statutory compliances have been fulfilled, Company Scheme Petition No. 349 of 2014 is made absolute in terms of prayer clause (a), (b) and (d).

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The Petitioner Company is directed to file a copy of this order and the Scheme duly authenticated by the Company Registrar, High Court (O.S), Bombay, with the concerned Superintendent of Stamps, for the purpose of Adjudication of stamp duty payable, if any, on the same within 60 days from the date of receipt of the certified copy of the order.

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The Petitioner Company is further directed to file a copy of this order along with a copy of the Scheme with the concerned Registrar of Companies, electronically, along with E-Form 21/ INC 28 in addition to physical copy, as per relevant provisions of the Companies Act, 1956/2013 whichever is applicable.

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The Petitioner Company to pay cost of Rs. 10,000/- to the Regional Director, Western Region Mumbai and to the Official Liquidator, High Court, Bombay in the present Company Scheme Petition. Costs to be paid within four weeks from the date of the Order.

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Filling and issuance of the drawn up order is dispensed with.

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All concerned regulatory authorities to act on a copy of this order along with Scheme duly authenticated by the Company Registrar, High Court, (O.S.), Bombay.

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(S. J. Kathawalla, J)

Harbinger Software Private Limited v. -

Case brief

What is this about?

What did the court decide?

Harbinger Software Private Limited v. -

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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