RAJIV NARAIN RAINA, J. - (1.) THIS second motion petition has been filed under sections 391 to 394 of the Companies Act, 1956 (for short the 'Act') by Kool Breweries Limited (petitioner amalgamating company) seeking sanction of the scheme of amalgamation of the petitioner company with Carlsberg India Private Limited (amalgamated company -'Carlsberg' for short) and their respective share holders.
(2.) THE registered office of the petitioner company is at Dharuhera, District Rewari, Haryana within the jurisdiction of this Court. The registered office of Carlsberg is at New Delhi, outside the jurisdiction of this Court. It may be noted that initially, the petitioner amalgamating company (for short 'Kool Breweries') was incorporated in the State of Delhi under the provisions of the Act on 1st December, 1993. Subsequently, the registered office of the petitioner amalgamating company was changed to the State of Haryana pursuant to an order passed by the Company Law Board, Northern Region Bench passed in CP No.67/17/2001 -CLB and was duly registered on 3rd January, 2002 by the Registrar of Companies, NCT of Delhi and Haryana. Its registered office is now at Plot No.2, Industrial Estate, Dharuhera, District Rewari, Haryana -123106. It has been stated in para. 3 of the petition that the petitioner amalgamating company is a wholly owned subsidiary of Carlsberg. The petitioner Kool Breweries is authorised and primarily engaged in the business of brewing, bottling, marketing and selling beer. The Memorandum and Articles of Association of the petitioner Kool Breweries are appended as Annexure P -2. The share capital structure of the petitioner Kool Breweries as on 30th September, 2013 and its issued, subscribed and paid -up capital is tabulated in para. 5 of the petition. A certified copy of the latest audited accounts report of the petitioner amalgamating company as on 31st December, 2012 is appended as Annexure P -3. Carlsberg was incorporated under the provisions of the Act on 3rd May, 2006 under the name South Asia Breweries Private Limited. The name was changed to its present form by the Registrar of Companies, NCT of Delhi and Haryana by issuing a certificate of incorporation. The Memorandum and Articles of Association of Carlsberg is at Annexure P -4. The details of the share capital structure of Carlsberg as on 30th September, 2013 has been spelt out in para. 8 of the petition. Carlsberg is also primarily engaged in the business of brewing, bottling, marketing and selling beer. Learned counsel for the companies submits that the scheme of amalgamation when allowed by this Court through this second motion petition would result in consolidation of the business of both the companies and it would be in the best beneficial interest of the share holders, creditors and the employees of both the companies. The Board of Directors of the both the companies have approved and adopted this scheme through a Board Resolution dated 12th August, 2013 of the petitioner amalgamating company and the Board Resolution dated 27th June, 2013 of the amalgamated company. The appointed date under the scheme is 1st April, 2013 being the date with effect from which the scheme shall upon sanction of the Company Court be operative. The net result of the resolutions is that the petitioner amalgamating company together with all its assets and liabilities and the entire business shall be transferred to and be vested in the amalgamated company as a going concern. The text of the scheme is appended with this petition.
(3.) THE first motion petition was filed in this Court in CP No.172 of 2013. On 11th December, 2013, the first motion petition was disposed of. A copy of the first motion order dated 11th December, 2013 is stated to be not available with the petitioner amalgamating company and keeping in view the urgency of the matter, the second motion petition has been moved with an undertaking that a copy of the order dated 11th December, 2013 would be placed on record as soon as it is made available. By the first motion order, the meetings of the share holders of all classes of creditors etc. was dispensed with by this Court. Similarly, the amalgamated company -Carlsberg moved the High Court of Delhi to dispense with the requirement of convening of the meetings of the equity share holders, preference shareholders and secured creditors of the amalgamated company in order to consider the scheme of amalgamation in view of the written consent to the Scheme. Such meetings were dispensed with upon an undertaking given by the amalgamated company to the Court that upon issuance of notice on the company petition filed for sanction of the scheme, it would publish a notice in two newspapers inviting objections of the unsecured creditors, if any, to the scheme. A copy of the order dated 19th November, 2013 passed by the Company Court at Delhi is at Annexure P -8.;