CP No.92 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.P.No.92 of 2011 connected with C.P.No.64 of 2011 Date of decision: November18,2011 In the matter of Scheme of Arrangement for Amalgamation of : A.R.D.Realty Private Limited …Transferor Company/Petitioner Company No.I Polo Hotels Limited …Transferee Company/Petitioner Company No.II CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL Present: Mr. Atul V.Sood, Advocate for the petitioner. Mr. D.P.Ojha, Official Liquidator. Ajay Kumar Mittal,J. 1. This second motion petition has been filed under Sections 391 to 394 of the Companies Act, 1956 for sanction of the Scheme of Arrangement for Amalgamation (hereinafter referred to be as ‘the Scheme’) between A.R.D.Realty Private Limited (Transferor Company) with Polo Hotels Limited (Transferee Company). 2. The transferor company was incorporated under the Companies Act, 1956 (in short, “the Act”) under the name “A.R.D Bau Sparkbase Estates Private Limited” on 15.7.1997. Thereafter, its name was changed to “A.R.D. Reality 1 CP No.92 of 2011 Private Limited” on 28.3.2008. The registered office of the company is situated at 329, Sector 21-A, Chandigarh. The main objects of the transferor company are detailed in the Memorandum and Articles of Association, annexed as Annexure P.2. The authorized, issued, subscribed and paid up capital of transferor company as on 25.2.2011 is as under:- A.R.D.Realty Private Limited Authorized Share Capital Amount (in Rs.) 1,250,000 equity shares of Rs.10 each 12,500,000/- Issued, Subscribed and Paid up Capital 9,81,300 equity shares of Rs.10 each 98,13,000/- Share Application Money 40,000/- Total 9,853,000/- (wrongly mentioned in the petition as Rs.98,43,000/-) 3. Petitioner (Transferee Company) was incorporated on 20.1.1984 under the name “Pohlo Estates Hotels and Investment Private Limited”. Thereafter, this company was converted into a Public Limited Company and its name was changed to “Polo Hotels Limited” on 16.5.1989. The registered office of the company is situated at Hotel North Park, Village Chowki, Panchkula-134109, Haryana. The main objects of the Transferee Company are detailed in Memorandum and Articles of Association, appended as Annexure P.5. The authorized, issued, subscribed and paid up capital of petitioner transferee company as on 24.2.2011 is as under:- Polo Hotels Limited Authorized Share Capital Amount (in Rs.) 150,00,000 equity shares of Rs.10/- each 150,000,000/- Issued, Subscribed and Paid up 33,97,600 equity shares of Rs.10/- each 33,976,000/- 2 CP No.92 of 2011 5. The Board of Directors of the Transferor Company and the Transferee Company considered and approved the scheme of arrangement for Amalgamation in their respective meetings held on March 16, 2011 vide Annexures P.8 and P.9. 6. Both the petitioner-companies filed First Motion Petition being CP No.64 of 2011 in this Court and in terms of order dated 29.7.2011, Annexure A-2 with CA No.615 of 2011 passed by this Court, the First Motion Petition was disposed of. Thereupon, the present petition has been filed by the both the petitioner-companies. 7. On presentation, notice of this petition was issued to the Official Liquidator and Regional Director, Ministry of Corporate Affairs, Noida. Notice was also directed to be published in two newspapers namely “Indian Express” and “Jan Satta” from Chandigarh and Official Gazettes of the State of Haryana and UT Chandigarh vide order dated 29.7.2011. 8. Counsel for the petitioner-companies has filed affidavit of publication alongwith the copies of newspaper cuttings and Official Gazettes of the State of Haryana and UT Chandigarh. 9. Pursuant to the orders dated 29.7.2011, the Official liquidator has placed on record his report giving no objection to the Scheme. The Official Liquidator has also placed on record the report of Regional Director, Northern Region, Ministry of Corporate Affairs under Section 394-A of the Act, wherein following objection had been raised:- “5. That the deponent further craves leave to submit that the shares of the transferee company viz. M/s Polo Hotels Limited are listed at Bombay Stock Exchange and Delhi Stock Exchanges. The Bombay Stock Exchange vide letter dated April 26, 2011 has given its ‘No Objection’ to the proposed scheme of amalgamation and stated that the company vide its letter dated April 18, 2010 has undertaken to lock in 25% of the new equity shares to be pursuant to the scheme of Amalgamation i.e. 12,60,971 equity shares for a period of three years 3 CP No.92 of 2011 from the date of listing of new shares at BSE”. Further, Bombay Stock Exchange has also stated that “the company vide its letter dated April 18, 2011, has undertaken to lock in 25% of the new equity shares to be pursuant to the conversion of compulsory preference shares pursuant to the aforesaid scheme of amalgamation i.e. 12,60,971 equity shares for a period of three years from the date of listing of the New Equity shares at BSE”. It is submitted that the petitioner Transferee company may be advised to comply with the conditions raised by the Bombay Stock Exchange.” 10. Rebutting the aforesaid objection, learned counsel for the petitioner companies submitted that in the additional affidavit of Shri Amardeep S.Dahiya, authorized representative of the petitioner companies dated 14.11.2011 which has been taken on record as Annexure A-3 vide order of even date in CA No.615 of 2011 that the transferee has already given an undertaking dated 18.4.2011 to the Bombay Stock Exchange to lock in 25% of the new equity shares issued pursuant to the conversion of Compulsorily Convertible Preference Shares pursuant to the scheme i.e. 12,60,971 equity shares for a period of three years from date of listing of new shares at BSE and to lock in 25% of the new equity shares to be issued pursuant to the said scheme and on that basis, the Bombay Stock Exchange has issued no objection to the scheme as per Annexure P.14 (colly) and the petitioner Company No.II undertakes to comply with the conditions raised by the Bombay Stock Exchange. 11. It is also stated that no proceedings under Sections 235 to 251 of the Act are pending against the petitioner companies. It has further been stated that no proceedings under Sections 397 and 398 of the Act have ever been instituted against the said companies. 12. I have carefully examined the Scheme of Arrangement for Amalgamation of Transferor Company with Transferee Company. I am of the opinion that the Scheme will be in the best interest of the share holders, creditors and all concerned. The Scheme is also not against the public interest and is fair, 4 CP No.92 of 2011 reasonable and practical. No person has objected to the sanction of the Scheme after notice was published in the newspapers and Official Gazettes of State of Haryana and UT Chandigarh. 13. I, accordingly, sanction the scheme of arrangement for amalgamation. The scheme shall come into operation from the effective date after the completion of the necessary formalities. The transferee company shall issue shares to the members of the transferor company as per para 1.1.1 of Part III of the Scheme. The transferor company shall be dissolved without being wound up. 14. A notice of this order be published in “The Indian Express and Jan Satta (Chandigarh Edition) and Official Gazettes of the State of Haryana and UT Chandigarh within 30 days of receipt of certified copy thereof. Any person interested shall be at liberty to approach this Court in the above matter for any direction that may be necessary. 15. Let formal order of sanction of the scheme of arrangement for amalgamation be drawn in accordance with law and the certified copy of the same shall be filed with the Registrar of the Company within 30 days after receipt of the same. Disposed of accordingly. November 18, 2011 (Ajay Kumar Mittal) ‘gs’ Judge 5