C.P.No.134/2006

Page 1

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ COMPANY PETITION NO. 134/2006

% Date of Decision : October 9 , 2006

In the matter of the Companies Act, 1956

under Sections 391(2) to 393 of the Companies Act, 1956

Scheme of Amalgamation of

Shrey Promoters Private Limited

... Applicant/Transferor Company

with

EMAAR MGF Land Private Limited

... Applicant/Transferee Company

Mr. S GaneGanesh, Sr.Advocate with

Mr.Vikram Dhokalia and Mr. Kamal

Budiraja

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA

1.Whether Reporters of local papers may be

allowed to see the judgment? -

C.P.No.134/2006

Page 2

2. To be referred to the Reporter or not ? Yes

3. Whether the judgment should be reported Yes

in the Digest ?

SANJIV KHANNA, J

1.The present petition under Section 391(2) to 393 of the Companies Act,

1956 (hereinafter referred to as the Act) has been filed by M/s Shrey

Promoters Private Limited (hereinafter referred to as the transferor

company) and M/s EMAAR MGF Land Private Limited (hereinafter

referred to as the transferee company).

2.The registered office(S) of the transferor company and the transferee

company are located in Delhi within the jurisdiction of this court.

3.It is stated in the petition that no proceedings under Sections 235-251 of

the Act are pending against the transferor company and the transferee

company.

4.That the transferee company and the transferor company had earlier

filed Company Application (M) No. 89/2006. The said application was

disposed of vide order dated 5^th May, 2006 dispensing with the

requirement to convene and hold meetings of their shareholders and

creditors in view of the no objection certificates/consent letters issued by

C.P.No.134/2006

Page 3

them. It was stated that transferor company had no secured or

unsecured creditor as on 28.2.2006. The creditors of the transferor

company after 28.2.2006 had given their consents/no objection

certificates.

5.After filing the present petition citations were directed to be published.

As per affidavit of service citations have been published. Notice was

also issued to the Official Liquidator and the Regional Director (Northern

Region). to file their response/reply.

6.The Official Liquidator has filed reply/response, inter alia, stating that he

has not received any complaint/objection to the proposed scheme of

amalgamation. He has further submitted that on the basis of information

submitted by the transferor company, the Official Liquidator is of the

view that the affairs of the transferor company were/are not being

conducted in a manner which is prejudicial to the interest of public.

7.The Regional Director has also filed his response/reply. The first

objection raised by the Regional Director is that the proposed scheme

envisages merger of authorised share capital of the transferor company

with the transferee company and with this merger, authorised share

capital of the transferee company shall stand increased by the issued

authorised share capital of the transferor company. It is stated that the

authorised share capital of a company can be increased after following

C.P.No.134/2006

Page 4

the prescribed procedure under the Act and on payment of requisite fee

and stamp duty. The said objection has to be overruled in view of the

decision of this Court in Hotline Hol Celdings Pvt. Ltd. and Ors, In re

(2005) 127 Company Cases 165. It has been held that in case of

complete merger of the transferor company with the transferee

company, authorised share capital of the transferor company can be

added to form a part of the authorised share capital of the transferee

company. The stamp duty and the registration fee paid by the transferor

company on its authorised share capital is treated as fee and stamp

duty paid on the enhanced authorised share capital. The said decision

is squarely applicable to the present case also, as the present scheme

stipulates complete merger of the transferor