CP No.98 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.P.No.98 of 2011 connected with C.P.No.58 of 2011 Date of decision: November 18,2011 In the matter of Scheme of Arrangement for Amalgamation of : Yusen Air & Sea Service (India) Private Limited …Transferor Company/Petitioner Company No.I NYK Logistics (India) 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 Modified Scheme of Arrangement for Amalgamation (hereinafter referred to be as ‘the Scheme’) between Yusen Air & Sea Service (India) Private Limited (Transferor Company) with NYK Logistics (India) Limited (Transferee Company). 2. The transferor company was incorporated under the Companies Act, 1956 (in short, “the Act”) on 21.3.2007. The registered office of the company is situated at No.803, 8th floor, Palm Court, Sukhrali Chowk, Gurgaon, Haryana. The main objects of the transferor company are detailed in the Memorandum and Articles of Association, annexed as Annexure P.2. 1 CP No.98 of 2011 The authorized, issued, subscribed and paid up capital of transferor company as on 31.3.2010 is as under:- A.R.D.Realty Private Limited Authorized Share Capital Amount (in Rs.) 90,00,000 equity shares of Rs.10 each 9,00,00,000/- Issued, Subscribed and Paid up Capital 90,00,000 equity shares of Rs.10 each 9,00,00,000/- 3. Petitioner (Transferee Company) was incorporated on 6.11.1998 under the name “Orient Consolidation Service (India) Limited” by the Registrar of Companies, Maharashtra, Mumbai. Its name was changed to “NYK Logistics (India) Limited” on 1.1.2004. Thereafter, the registered office of the transferee company was shifted to the State of Haryana vide order dated 2.2.2011 of the Company Law Board, Mumbai Branch, Mumbai and a certificate of Registration of Company Law Board Order for change of State dated 3.3.2011 was issued by the Registrar of Companies, NCT of Delhi and Haryana. The main objects of the Transferee Company are detailed in Memorandum and Articles of Association, appended as Annexure P.4. The authorized, issued, subscribed and paid up capital of petitioner transferee company as on 31.3.2010 and as on 31.3.2011 is as under:- Yusen Air & Sea Service (India) Private Limited Authorized Share Capital Amount (in Rs.) 38,000,000 equity shares of Rs.10/- each 380,000,000/- Issued, Subscribed and Paid up 2 CP No.98 of 2011 36,735,000/-equity shares of Rs.10/- each 367,350,000/- 4. 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 April 1, 2011 and March 18, 2011, Annexures P.6 and P.7 respectively. 5. Both the petitioner-companies filed First Motion Petition being CP No.58 of 2011 in this Court and in terms of order dated 22.7.2011, Annexure A-1 with CA No.617 of 2011 passed by this Court, the First Motion Petition was disposed of with liberty to file the Second Motion Petition. Thereupon, the present petition has been filed. 6. 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 (English) and Jan Satta (Hindi) (Delhi Editions) and Official Gazette of the State of Haryana, vide order dated 1.8.2011 passed by this Court. 7. Counsel for the petitioner-companies has filed affidavit of publication alongwith the copies of newspaper cuttings and Official Gazette of the State of Haryana. 8. Pursuant to the orders dated 1.8.2011, the Official Liquidator has filed affidavit and has no objection to the sanction of the Scheme. However, report of Regional Director, Northern Region, Ministry of Corporate Affairs under Section 394-A of the Act, filed by the Official Liquidator raises the following objection:- “5. That the deponent further craves leave to submit that the appointed date has been fixed as 1.10.2011, while the scheme is based upon the audited balance sheet as at 31.3.2010 and 3 CP No.98 of 2011 unaudited balance sheet as at 31.3.2011 of both the transferor and transferee companies.” 9. Rebutting the aforesaid objection, learned counsel for the petitioner companies has filed additional affidavits of Shri Mukesh Rehal and Shri Hitesh Doshi, authorized representatives of the transferor and transferee companies respectively and both have stated in para 2(v) as under:- “That the valuation of the respective companies and share swap has been computed after considering projected financial results and financial position of the respective petitioner companies till the appointed date ( i.e. 1.10.2011), the valuation being based on recognized formula and done by independent experts. The audited financial statements as on March 31, 2010 have been used only for the purpose of the disclosure of the latest audited financials results of the Companies in the Scheme (as per standard formats and practice in this regard), since when the scheme was drafted and filed with the Hon’ble Court audited financial statements for the year ending March 31, 2011 were not available.” Thus, the objection raised in the report of the Regional Director does not carry any substance. 10. 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, 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. 4 CP No.98 of 2011 11. I, accordingly, sanction the modified scheme of arrangement for amalgamation. The scheme shall come into operation from the effective date after the completion of the necessary formalities. The transferor company shall be dissolved without being wound up. 12. A notice of this order be published in “The Indian Express (English) and Jan Satta (Hindi) (Delhi Editions) and Official Gazette of the State of Haryana 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. 13. 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 CP No.98 of 2011 6