In Re: Indian Aero Infrastructure Private Limited and Ors.

Aravind Kumar, J.—These petitions are filed under Sections 391 to 394 of Companies Act for sanction of Scheme of Arrangement where under the Transferor Company i.e., Hassan Airport Project Division ("HAP Division" for short) is proposed to be demerged as a going concern into the Transferee Company as per Annexure-A (in CO. P. 164/15).

The Transferor Company was incorporated on 23.10.2000 with the Registrar of Companies, Karnataka and is engaged in the business of Aviation Infrastructure Development. A copy of the Memorandum and Articles of Association is produced as per Annexure-B (in CO. P. 164/15). The registered office of the Transferor Company is situated at Bengaluru at the address shown in the cause title. The authorized, issued, subscribed and paid up capital of the Transferor Company as on the date of approval of the scheme is as indicated in paragraph 4 of the petition. Assets and liabilities of the Transferor Company as on 31.3.2015 are as set out in paragraph 7 of the petition and the annual Report of the Company is produced at Annexure-C (in CO. P. 164/15).

Transferee Company was incorporated on 31.1.2007 with the Registrar of Companies, Karnataka and engaged in the business of providing Aviation Infrastructure. Copy of the Memorandum and Articles of Association is produced at Annexure-B (in CO. P. 165/15). The registered office of the Transferee Company is situated at Bengaluru at the address shown in the cause title. The authorized, issued, subscribed and paid up capital of the Transferee Company as on the date of approval of the scheme is as indicated in paragraph 4 of the petition (in Co. P. 165/15). Assets and liabilities of the Transferee Company as on 31.3.2015 are as set out in paragraph 7 of the petition and the annual Report of the Company is produced at Annexure-C (in CO. P. 165/15).

Board of Directors of both the Transferor Company and Transferee Company have adopted the scheme of Arrangement in its Board meeting held on 12.6.2015 and have passed Resolutions approving and adopting the scheme of arrangement in the said meetings which are at Annexures-F to the respective petitions.

The Transferor Company and Transferee Company have filed applications in C.A. Nos. 794 & 795 of 2015 seeking dispensation of Meeting of Share holders and creditors for approving the Scheme of Arrangement.

This Court vide order dated 10.7.2015 has allowed the application and dispensed with convening of meetings of shareholders and creditors of the Transferor and Transferee Companies to consider the Scheme of Arrangement. Copies of the orders passed on these appeals are appended to the petitions.

There petitions came to be filed on 17.7.2015. This Court had ordered notice to Regional Director and had also directed the petitioner to take out paper publication in "The Hindu" English daily and "Udaya Vani" Kannada Daily newspapers on or before 4.8.2015 indicating the date of hearing as 18.8.2015 vide order dated 21.7.2015. Accordingly, paper publication has been carried out and memo is filed enclosing paper publication. Notice also come to be served on Regional Director of Companies.

The Registrar of Companies Karnataka has filed affidavit with following observations:

"(i) That the notice dated 07.08.2015 was issued to Income-Tax Department as required by Ministry of Corporate Affairs General Circular No. 1/2014 dated: 15.01.2014 giving 15 days time. But no comments/objections have been received so far from the Income Tax Department by the office of RD (SER).

(ii) The petition is for demerger i.e., transfer of Hassan Airport Project Division (HAP Division) from M/s. Axiscades Aerospace Infrastructure Private Limited to M/s. Indian Aero Infrastructure Private Limited. The airport projects are regulated by the Airport Authority of India or Ministry of Civil Aviation, Government of India. In case, the said airport project is with the approval or consent or license or authority of Airport Authority of India or Ministry of Civil Aviation, Government of India, the petitioner company may either submit no objection certificate from the Ministry of Civil Aviation, Government of India before the Hon''ble High Court or in case, the Hon''ble High Court is pleased to approve the Scheme, the said transfer of airport project may be subject to approval of the Ministry of Civil Aviation, Government of India.

(iii) As the present authorized capital of the transferee company is not sufficient for the purpose of issuing equity shares to the members of transferor company in consideration for the said amalgamation in terms of scheme, the transferee company has to invariably increase its authorized capital to the extent required for the purpose as stated in clause 5.4 of the scheme, by paying requisite registration fees, stamp duty as prescribed in the Companies Act, 2013 and by filing relevant e-forms with the Registrar of Companies, Karnataka."

The first observation relates to non-receipt of communication by the jurisdictional Income Tax Department and in view of there being no adverse comments by the Income Tax Department question of passing any orders on the first observation does not arise. In reply to the observation made by the Registrar of Companies, Karnataka which relates to approval of scheme by Ministry of Civil Aviation authorized signatory of both the Companies have filed affidavits and same are perused by me in conjunction with the observations made by Registrar of Companies.

The second observation relates to approval of the scheme by the Ministry of Civil Aviation, Government of India. In view of the scheme of arrangement, transfer of HAP Division from M/s. Axiscades Aerospace Infrastructure Private Limited to M/s. Indian Aero Infrastructure Private Limited. The Airport projects require approval by the Ministry of Civil Aviation, Government of India. The approval of the project by the Ministry of Aviation, Government of India was granted by the Project Propounder viz., the petitioner transferor company in Co. P. 165/15. As such necessarily the Ministry of Civil Aviation, Government of India will have to approve the project in view of scheme of arrangement now entered into between the petitioner-transferor company in Co. P. No. 164/15 and the transferee company i.e., the petitioner in Co. P. No. 165/15 for being sanctioned by this Court. The affidavit dated 15.10.2015 filed by the authorized signatory of the respective companies would indicate that they have undertaken that they would obtain necessary licences and grant of requisite approvals of Air Port Authorities of India and Ministry of Civil Aviation, Government of India. In that view of the matter, reply given by the Transferor and Transferee Companies to the observation made by Registrar of Companies is hereby accepted.

The third observation by the Registrar of Companies relates to authorized capital of the transferee Company being not sufficient for the purpose of issue of equity shares to the members of the Transferor Company in terms of the amalgamation in terms of the scheme and as such the Regional Director has opined that authorised capital of the company will have to be invariably raised to the extent required for the purpose as indicated in clause 5.4 of the scheme by paying required registration fee as prescribed under the Companies Act and relevant E-Form is to be filed with the Registrar of Companies of Karnataka. The affidavit of the authorised signatory of the transferee company would indicate that they have indicated to increase the authorised share capital and pay requisite registration fee, stamp duty and also file relevant E-Form with the Registrar of Companies as observed by Regional Director. Undertaking is placed on record.

The Scheme of Arrangement would also indicate that employees of HAP Division of Transferor company would be the employees of the transferee company as indicated in clause 8 of the scheme of arrangement. In these circumstances, the petitioners have made out a case for sanction of scheme of arrangement for demerge of HAP Division of transferor company as per Annexure-A. Hence, the following:

(i) Company Petitions are hereby allowed.

(ii) Scheme of arrangement for demerger of Hassan Airport Project Division of the Transferor Company as per scheme of arrangement Annexure-A is hereby sanctioned for being transferred to and to be vested in the transferee company subject to compliance of the observation made by the Registrar of Companies and as undertaken in the affidavits filed by the authorised signatory of the respective Companies.

(iii) Petitioners shall serve a copy of this order on the Registrar of Companies in the State of Karnataka within 30 days from the date of receipt of copy of this order.