Allowed

Bellissimo Enterprise Private Limited v. ..

Gujarat HC9 Jul 2015COMP/145/2015

Case brief

AI extract

What is this about?

The High Court of Gujarat sanctioned a Scheme of Amalgamation between Bellissimo Enterprise Private Limited (Transferor) and Athanas Enterprise Private Limited (Transferee) under Sections 391-394 of the Companies Act, 1956, finding it beneficial for stakeholders and creditors without requiring additional directions despite observations by the Regional Director.

What did the court decide?

Scheme of Amalgamation sanctioned; notices carried; books of accounts preserved for 8 years; costs awarded.

Bellissimo Enterprise Private Limited Vs .. — Specific Performance | Gujarat HC (2015)

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O/COMP/144/2015 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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COMPANY PETITION NO. 144 of 2015

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In COMPANY APPLICATION NO. 133 of 2015

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With

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COMPANY PETITION NO. 145 of 2015

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COMPANY APPLICATION NO. 132 of 2015

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==========================================================

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ATHANAS ENTERPRISE PRIVATE LIMITED....Petitioner(s)

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Versus

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......Respondent(s)

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==========================================================

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Appearance:

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MRS SWATI SOPARKAR, ADVOCATE for the Petitioner(s) No. 1 MR DEVANG VYAS, ADVOCATE for the Respondent(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

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Date : 09/07/2015

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ORAL ORDER

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Heard learned advocate Mrs. Swati Soparkar for the petitioner and learned advocate Mr. Devang Vyas for the respondent.

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These are the petitions filed by the petitioner companies for sanction of a Scheme of Amalgamation of Bellissimo Enterprise Private Limited, the Transferor Company with Athanas Enterprise Private Limited, the Transferee Company under Section 391 to 394 of the Companies Act, 1956. It has been contended that both the companies belong to the same group of management and are engaged in similar

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Page 1 of 6

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O/COMP/144/2015 ORDER

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commercial activities. The amalgamation is proposed in order to achieve synergic benefits and consolidation of resources and optimum utilization of the same would be advantageous to the stakeholders of the company. Amalgamation shall be beneficial from financial as well as administrative perspective. The petitions give in details the benefits envisaged due to the scheme.

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It has been pointed out that vide the order dated 20^th April 2015 passed in the Company Application no. 132 of 2015, the meetings of the Equity Shareholders, Preference Shareholders as well as Unsecured Creditors of the Transferor company, were dispensed with in view of the written consent letters from all of them being placed on record and there were no secured creditors of the Petitioner Company. Similarly, in case of the Transferee Company vide the said order dated 20^th April 2015 passed in the Company Application no. 133 of 2015; the meetings of the Equity Shareholders and Unsecured Creditors were dispensed with in view of the written consent letters, placed on record. There were no Secured Creditors of the Transferee Company.

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The substantive petitions were admitted vide order dated 29^th April 2015. The public notices for the same were duly advertised in the newspapers ‘Indian Express’ English daily, Ahmedabad edition, and ‘Sandesh’, Gujarati daily, Ahmedabad edition dated 13^th May 2015. The publication in the Government gazette was dispensed with. Affidavits dated 10^th June 2015 confirm the same. No one has come forward with any objections to the said petitions even after the publication and the same has been further confirmed by the additional affidavit dated 8^th July 2015.

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Page 2 of 6

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O/COMP/144/2015 ORDER

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Notices of the petitions of the Transferor Company was served upon the Official Liquidator attached to Gujarat High Court. Vide the report dated 24^th June 2015, filed by the Official Liquidator; it is observed that the affairs of the Transferor Company have not been conducted in a manner prejudicial to the interest of their members or to the public interest. However, the Official Liquidator has requested this court to direct the petitioner Companies to preserve the books of accounts and records of the Transferor Company for a period of 8 years from the date of sanctioning the scheme and not to dispose off the same without prior permission of the Central Government The petitioner companies are accordingly directed to preserve the books and records of the Transferor Company for a period of 8 years from the date of sanctioning the scheme and not to dispose of the same without prior permission of the Central Government.

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Notice of the petitions have been served upon the Central Government and Shri Devang Vyas, learned Assistant Solicitor General appearing for the Central Government. A common affidavit dated 16th June 2015 has been filed by Mr. Shambhu Kumar Agarwal, the Regional Director, North-Western Region, Ministry of Corporate Affairs, whereby some observations are made.

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The attention of this court is drawn to the common Additional Affidavit dated 8^th July 2015, filed by Mr. Nirav Mehta on behalf of the petitioner companies which provide requisite explanation for the said issues raised by the Regional Director.

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(i) The observations made vide para 2 (a) and (b) refer to the factual aspects of the proposed scheme and they do not need any response from the petitioners.

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O/COMP/144/2015 ORDER

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(ii) The observation made vide para 2 (c) of the said affidavit pertains to the absence of the working sheets for calculation of Share Exchange Ratio as worked out by M/s. G. S. Mathur & co., Chartered Accountants. In this regard, it has been pointed out that both the companies are private limited companies and the shares of both the companies are held by the same set of shareholders. The proposed ratio is equitable and since no public interest is involved, it is not relevant to

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have the working sheets for the same. The concerned shareholders have accepted the same and no one has raised any objection with regard to the fairness of the said ratio.

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(iii) The next observation made vide para 2(d) pertains to the source of income and investment activity undertaken by both the petitioner companies. It has been contended by the Regional Director that the company falls under the category of an NBFC and hence the petitioner companies be directed to comply with the guidelines issued by RBI in this regard. It has been clarified that the petitioner companies do not fall under the category of an NBFC. The investment activity is strictly restricted to group companies only and no public interest is involved in the said activities. In view of the same, RBI guidelines are not applicable to the petitioner companies.

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(iv) The next observation made vide para 2(e) pertains to the letter dated 13^th May 2015 from the Regional Director to the Income Tax dept. in order to obtain their objections if any. Since the statutory period of 15 days as envisaged by the relevant circular of the Ministry of Corporate Affairs is over, it can be presumed that the Income Tax dept. has no objection to the proposed scheme of arrangement. However, the Petitioner Companies have clarified that they shall comply with applicable provisions of Income Tax Act and

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O/COMP/144/2015 ORDER

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Rules.

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(v) It has been pointed out by the Regional Director that there are no complaints received against any of these companies by the Registrar of Companies and that the Regional Director has no other objections to the scheme.

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(vi) Thus, considering all the observations of the Regional Director and the submissions and explanations given by the Petitioner Companies, I am satisfied that the issues raised by the Regional Director are not material for the sanction of the scheme and no directions are required to be given to the petitioner companies while granting the sanction to the scheme.

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Having gone through the petitions, having considered the submissions made in this regard and being satisfied that amalgamation under the proposed scheme would be in the interest of the companies and their members and creditors, the Scheme is hereby sanctioned. Prayers in terms of paragraph 16 (a) of the Company Petition No. 144 of 2015 and 15 (a) of the Company Petition No. 145 of 2015 are hereby granted.

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The petitions are disposed of accordingly. So far as the costs to be paid to the Central Government Standing Counsel are concerned, the same are quantified at Rs. 7,500/-per petition. The same may be paid to the counsel appearing for the Central Government Cost of Rs. 7,500/- be paid to the Office of the Official Liquidator towards cost for the Transferor Company.

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The petitioner companies are further directed to lodge a copy of this order, the schedules of immovable assets of the Transferor Company as on the date of this order and the Scheme duly authenticated by the

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O/COMP/144/2015 ORDER

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Registrar, High Court of Gujarat, with the concerned Superintendent of Stamps, for the purpose of adjudication of stamp duty, if any, on the same within 60 days from the date of the order.

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The petitioner companies are directed to file a copy of this order along with a copy of the scheme with the concerned Registrar of Companies, electronically, along with INC-28 in addition to physical copy as per relevant provisions of the Act.

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Filing and issuance of drawn up order is hereby dispensed with.

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All concerned authorities to act on a copy of this order along with the scheme duly authenticated by the Registrar, High Court of Gujarat. The Registrar, High Court of Gujarat shall issue the authenticated copy of this order along with Scheme as expeditiously as possible.

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(VIPUL M. PANCHOLI, J.)

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sndevu

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Bellissimo Enterprise Private Limited v. ..

Case brief

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Bellissimo Enterprise Private Limited v. ..

Case brief

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