IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : 05.08.2010 C.P.No.12 of 2010 connected with C.P.No.125 of 2009 DLF Services Limited having its registered office at 10th Floor, Gateway Tower, DLF City, Phase-III, Gurgaon – 122002 …Petitioner/Transferor Company No.1 DT Cinemas Limited having its registered office at 10th Floor, Gateway Tower, DLF City, Phase-III, Gurgaon-122002. …Petitioner/Transferor Company No.2 WITH DLF Utilities Limited having its registered office at Shopping Mall, 3rd Floor, Arjun Marg, DLF City, Phase-I, Gurgaon-122002. …Petitioner/Transferee Company CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA Present : Ms. Pooja Chopra, Advocate, for the petitioners. Mr. D.P.Ojha, Official Liquidator. HEMANT GUPTA, J. This is a petition under Sections 391 and 394 of the Companies Act, 1956 for sanction of the Scheme of Amalgamation of DLF Services Limited and DT Cinemas Limited, Transferor Company Nos.1 and 2 respectively with DLF Utilities Limited- Transferee Company. Transferor Company No.1 was originally incorporated as DLF Info City Developers (Gujarat) Limited on 21.02.2007. The name of the Company was changed to DLF Services Limited on 25.02.2009 having its registered office at Gurgaon. The Company is engaged in the business of C.P.No.12 of 2010 providing services of management, protection and maintenance of multi- storied buildings/colonies, commercial complexes, office complexes, market, shopping complexes, clubs, theatres, hospitals, factories, streets, public and private, estates, cities, town, villages etc. and operation thereon of common services for the benefit of the owners, corporates, lessees, vendees. The Transferor Company No.2 was originally incorporated as Ridgewood Estate Management Services Private Limited on 08.06.1999. The name of the Company was changed to Grand Cinema Private Limited on 31.10.2002. The Company was further converted into a Public Limited Company under the Companies Act, 1956 on 31.03.2003 with the name of DT Cinemas Private Limited. The name of the Company was further changed to DLF Services Limited on 11.11.2005 and again changed to DT Cinemas Limited on 23.02.2009. The Company has its registered office at Gurgaon. Transferor Company No.2 is engaged in the business of developing, operating, constructing, maintaining, managing and promoting etc. of Multiplex Entertainment Complexes, Multiple Cinemas or Specially Cinemas including Three Dimensional and Seat Simulators in India or abroad. The Transferee Company-DLF Utilities Limited was originally incorporated as Nilgiri Cultivations Private Limited on 21.08.1989. The name of the Company was changed to DLF Utilities Limited on 24.09.2007 and was converted into a Public Limited Company under the Companies Act, 1956 on 23.10.2008 with the name of DLF Utilities Limited. The Transferee Company has its registered office at Gurgaon. The said Transferee Company is engaged amongst others in the business of generation, storage, accumulation, transmission, distribution, supply, 2 C.P.No.12 of 2010 purchase, sale, exchange, export, import, trading and dealing of power, electricity and other sources of energy. It is pointed out that Transferor Company No.1 is a wholly owned subsidiary of M/s DLF Commercial Developers Limited, a subsidiary of DLF Limited (the ultimate holding Company). Transferor Company No.2 is an indirect subsidiary of DLF Limited through DLF Cyber City Developers Limited, another subsidiary of the ultimate holding company. The Scheme envisages the Amalgamation of Transferor Company No.1 and Transferor Company No.2 with Transferee Company to enable the companies to harness and optimize the resources in the best interest of their respective stakeholders. The proposed amalgamation is to achieve size, scale, integration and greater financial strength as well as flexibility and maximizing the shareholders value. The merged entity is likely to achieve higher long term financial returns than could be achieved by the respective Companies individually. The stakeholders of Transferor Company Nos.1 and 2 have believed that this Scheme would benefit the respective companies in the following reasons : (a) Enable the Transferee Company to use the resources of 1st and 2nd Transfeor Companies; (b) Reduction of overheads and other expenses, facilitate administrative convenience, and ensure optimum utilization of available services and resources; (c) The merged entity will have greater potential and ability to meet competition. It is further pointed out that the Scheme of Amalgamation does not affect the rights of the creditors, because the assets of the Transferor Companies and the Transferee Company are sufficient to meet the liabilities of all the creditors in full. The Scheme of Amalgamation further contemplates that the Authorized Share Capital of both the Transferor 3 C.P.No.12 of 2010 Companies shall also stand added and combined with the existing Authorized Capital of the Transferee Company without any further act, instrument or deed or payment of any fees/stamp duty and without compliances under the provisions of Sections 94, 95 & 97 and other applicable provisions of the Companies Act, 1956. It is also mentioned in the petition that Transferor Company No.1 has no Secured Creditors, but has some Unsecured Creditors. The Unsecured Creditors holding 46% (Annexure P-14) of total debts have given their consent to the Scheme of Amalgamation, whereas the remaining Unsecured Creditors are suppliers of various goods and material, vendors, service providers and contractors and the amount due to these Unsecured Creditors is in the normal course of business. Transferor Company No.2 has also no Secured Creditors and Unsecured Creditors holding 39% of total debts have given their consent to the Scheme of Amalgamation (Annexure P-17), whereas the remaining Unsecured Creditors are suppliers of various goods and material, vendors, service providers, contractors, security deposits given by the customers and sundry Government dues and the amount due to these Unsecured Creditors is in the normal course of business. The Transferee Company has two Secured Creditors, who have given their consent to the Scheme of Amalgamation in terms of the order passed by this Court on 12.11.2009. Out of the total Unsecured Creditors, 59% of the total debts have given their consent to the Scheme of Amalgamation (Annexure P-20), whereas the remaining Unsecured Creditors are suppliers of various goods and material, vendors, service providers, contractors, security deposits given by the customers and sundry Government dues and the amount due to these Unsecured Creditors is in the normal course of business. 4 C.P.No.12 of 2010 In C.P.No.125 of 2009, this Court dispensed with the meeting of the Shareholders of the Transferor & Transferee Companies, but directed convening of the meetings of the Unsecured Creditors of the Transferor and Transferee Companies. In pursuance of such direction, a meeting of the Unsecured Creditors of the Transferor and Transferee Companies was held on 16.01.2010. 182 Unsecured Creditors of three Companies attended the meeting including 63 proxies. The total value of the present votes is Rs.4,88,80,80,633/- and that the rejected votes were 53 having total value of Rs.65,39,06,421/-. None of the other Unsecured Creditors have objected to Scheme of Amalgamation having total value of Rs.4,23,41,74,212/-. It is, thus, contended that overwhelming majority of Unsecured Creditors have approved the Scheme of Amalgamation. The notice of the present petition was ordered to be published in daily “Financial Express ‘All India Edition (English)’” and “Jan Satta (Hindi)” as well as in the Official Gazettee of Government of Haryana. Notice was also issued to the Regional Director, Ministry of Corporate Affairs, Government of India, Noida as well as to the Official Liquidator. The Official Liquidator has submitted his report on the basis of the report of M/s A.K.Sood & Associates, Chartered Accountants appointed by the Official Liquidator to examine the books of accounts/records of the Transferor Companies. The Chartered Accountants have reported that the affairs of the Transferor Companies have been conducted in such a way, not prejudicial to the interest of its members or to the public interest. Dr. Navrang Saini, Regional Director, Ministry of Corporate Affairs, Noida in his affidavit dated 04.05.2010 has, inter alia, pointed out that Memorandum of Association and Article of Association of a Company can be changed/altered only after following the procedure prescribed under the relevant provisions of the Companies Act, 1956. It has been further 5 C.P.No.12 of 2010 pointed out that the petitioner Companies have not provided the report of the Chairman and it is not clear that how many Unsecured Creditors attended the meeting and accorded the approval for the Scheme of Amalgamation. The petitioner-Transferee Company has filed an affidavit of it authorized representative namely Shri C.P.Poonacha, alongwith C.A.No.366 of 2010. In the aforesaid affidavit, the Transferee Company has undertaken to take necessary steps for alteration/addition/amendments of the Memorandum of Association of the Transferee Company as per the provisions prescribed under the Companies Act, 1956. In view of the said affidavit, which has been taken on record, the first objection raised by the learned Regional Director no longer survives. From the perusal of the report of the Chairman, it transpires that Annexure ‘A’ is the list of corporate entities; Annexure ‘B’ is list of the Unsecured Creditors, who voted through proxies; and Annexure ‘C’ is the list of the persons, who were present in person, in respect of DLF Services Ltd.-Transferor Company No.1. Annexure ‘E’ is the list of Unsecured Creditors, who voted through authorized representatives and Annexure ‘F’ is list of the Unsecured Creditors, who voted through proxies in respect of DT Cinemas Limited-Transferor Company No.2. Annexure ‘H’ is the list of Unsecured Creditors, who voted through authorized representatives and Annexure ‘I’ is list of the Unsecured Creditors, who voted through proxies in respect of DLF Utilities Limited-Transferee Company. The transferor companies have further confirmed that there are no investigations or proceedings pending against the transferor or transferee companies under Sections 235 and 251 of the Companies Act and the Scheme of Amalgamation in no way runs contrary to the public policy nor it affects the interest of the share-holders, secured/unsecured creditors of the 6 C.P.No.12 of 2010 transferor/ transferee companies. There is no reservation of the Central Government and by the Official Liquidator. Therefore, the Scheme of Amalgamation (Annexure P-7) is approved. The transferor companies are dissolved without being wound up. The Scheme shall be binding on the petitioner companies, their respective share-holders, creditors and all concerned. The Transferee Company shall allot the Equity Shares to the Transferor Companies in accordance with the Scheme. A certified copy of the order shall be filed with the Registrar of Companies within 14 days from the date of receipt of certified copy of this order, in Form No.41. A notice of the orders be published in the newspapers i.e. “Financial Express ‘All India Edition (English)’” and “Jan Satta (Hindi)” as well as in the Official Gazettee of Government of Haryana. Any person interested shall be at liberty to apply to the Court for any direction as per law. Disposed of accordingly. 05.08.2010 (HEMANT GUPTA) Vimal JUDGE 7