' MIAN SAQIB NISAR, J.---This is a petition under section 284 read with section 287 of the Companies Ordinance, 1984 for the sanction of a Scheme of Merger/Amalgamation between the petitioners Companies. The Scheme of Merger/ Amalgamation has been placed as Annex-A to the petition along with an elaboration of the said Scheme that was filed as Annex-A to C.M. No,370 of 2009. The learned counsel for the petitioners has explained that there is no material difference between the scheme as originally filed with the petition and the elaborated scheme filed with C.M. No,370 of 2009. The scheme filed with the afore-said civil miscellaneous application has simply described in greater detail the assets of Petitioner No,1 that are to be bifurcated between petitioners Nos.2 and 3.
The ratio and value of the assets of petitioner No,1 to be bifurcated between Petitioner No,2 and petitioner No,3 has remained exactly the same as stated in the Scheme originally filed with this petition. It is the elaborated Scheme that will hereafter in this order be referred to as "the Scheme".
2. On the first date of hearing in the instant petition i,e, 16-9-2009, an order was made for the meeting of the Members of the petitioners-Companies on 28-9-2009 in accordance with section 284(1) of the Companies Ordinance, 1984. Mr. Rana Tauseef Awais, Advocate was appointed as Chairman for the purposes of the afore-said shareholders' meeting. The next date of hearing in the instant petition was fixed as 8-10-2009 and a direction was made for notice to all creditors of the Company of the hearing to be conducted on 8-10-2009 through publication in the daily 'Jang', daily 'Dawn' and daily 'Business Recorder'. Notice was also issued to the Securities and Exchange.
Commission of Pakistan.
3. The meeting of the shareholders of the three petitioners-Companies was held on 28-9-2009 and the Scheme was unanimously approved by the shareholders in the elaborated form placed at Annex-A to C.M.No,370 of 2009. The Chairman appointed by this Court for the purposes of the afore-said meetings of the shareholders filed his report in this Court on 5-10-2009 confirming the unanimous approval by the Members of the Scheme.
4. On 30-9-2009, C.M.No,351 of 2009 was filed by the petitioners praying that notice of the proceedings in this petition be issued to the Pakistan Electronic Media Regulatory Authority (PEMRA). Notice was issued to PEMRA of the hearing fixed for 8-10-2009.
5. On 8-10-2009, Mr. Shahzad Ata Elahi, Advocate appeared on behalf of the secured creditor banks of the petitioners, viz. The Bank of Punjab, Emirates Global Islamic Bank and Silk Bank. Khawaja Amer Farooq, Advocate appeared for another secured creditor (Atlas Bank). Mr. Muhammad Rizwan; Advocate appeared for Bank Alfalah Limited along with Mr. Haris Yameen Khan, Relationship Manager and Mr. Muhammad Rizwan, Manager (Credits), Bank of Alfalah Limited. Mr. Salwat Ahmad, representative of Standard Chartered Madaraba was also present in the Court. Mr. Ali Masood Hayat, Advocate appeared for Telenor Company and Mr. Naeem Sultan, Advocate appeared for Wateen Telecom. No objection was raised to the proposed Scheme of Merger/ Amalgamation by anyone.
6. It may be noted that on 8-10-2009, Malik Muhammad Nasir Ayaz, Advocate appeared on behalf of PEMRA and stated that PEMRA had no objection to the proposed merger/ amalgamation in view of the fact that no change of control was to occur pursuant to the proposed merger/ amalgamation with respect to petitioner No,3, National Communication Services (SMC-Pvt.)
Limited, which is a licensee of PEMRA. Mr. Muhammad Saqlain Arshad, Advocate/Deputy Director (Legal), SECP, stated that SECP would file its 'comments with respect to the proposed merger/amalgamation and sought time for doing so. Consequently, the matter was refixed for hearing on 12-10-2009.
7. Today, the matter came up for hearing and Mr. Saqlain Arshad, Advocate/Deputy Director (Legal) SECP adverted to comments filed on behalf of the SECP wherein the following two issues had been raised:--
(i) That Form-26 had not been filed by the petitioners-Companies with the Registrar of SECP with respect to the resolutions passed in the shareholders meetings held on 28-9-2009.
(ii) That the paid-up capital of petitioner No,3 had been incorrectly stated in the Form filed with the Registrar, SECP.
' The learned counsel for the petitioners-Companies informed this Court that Form-26 with respect to the resolution of 28-9-2009 had been filed within the permissible period of 14 days. Copies of the Challan Forms evidencing filing of Form-26 were handed over to the Deputy Director (Legal) SECP.
The learned counsel for the petitioners also stated that the paid-up capital of petitioner No,3 had been revised as in Form-3 filed with the SECP. The learned counsel for the petitioners stated that in view of the foregoing, the two issues raised by the SECP had been addressed. There was no other objection with respect to the Scheme of Merger/amalgamation.
8. On a query posed by the Court, the learned counsel for the petitioners had explained that the transfer of assets and liabilities, including immovable property, from one Company to another in accordance with the Scheme of Merger/ Amalgamation will not require any instrument or conveyance in the event of this Court passing an order sanctioning the said Scheme. In particular, the provisions of section 17 of the Registration Act, 1908 requiring compulsory registration if instruments conveying title to land have no applicability in view of the provisions of section 287(2) of the Companies Ordinance, 1984.
9. In response to a further query, the learned counsel for the petitioners has further stated that an order sanctioning a Scheme in terms of the afore-said section 287 makes the merger/amalgamation effective as of the date of transfer specified in the Scheme approved by the Members of the Companies concerned and not as of the date of the Court's order. In this regard, reference has been made to a judgment of this Court reported as Ujala Cotton Mills Limited v. Income Tax Officer 1985 PTD 510 and a judgment of the Indian Supreme Court reported as Marshell Sons and Co. Ltd. v. Income Tax Officer (1997)88 Company Cases 528.
10. The provisions of the Companies Ordinance, 1984, referred to by the learned counsel, and the judgments cited at the bar are fully applicable to the Scheme presented for sanction by this Court.
Therefore, in view of the foregoing, this Court orders:--
(1) That the undertakings, assets, privileges, properties, rights, powers and duties of the transferor Company (i,e, petitioner No, 1) as per the Scheme of Arrangement for Merger along with "Annexure- A" as attached thereto and duly approved by the Members/Shareholders and creditors of the afore-said petitioners, be transferred without further act or deed of petitioner No,2 and accordingly the same shall pursuant to section 287(2) of the Companies Ordinance, 1984 be transferred to and vest in petitioner No,2 with effect from July 1, 2009 but subject nevertheless to all charges now affecting the same.
(2) That the remaining undertakings, assets, privileges, properties, rights, powers and duties of the transferor Company i,e, petitioner No,1 in consonance with the Scheme of Arrangement for Merger along with "Annexure-B" as attached thereto and duly approved by the Members/Shareholders and creditors of the aforesaid petitioners, be transferred without further act or deed to petitioner No,3 and accordingly the same shall, pursuant to section 287(2) of the Companies Ordinance, 1984 be transferred to and vest in petitioner No,3 with effect from July 1, 2009 but subject nevertheless to all charges now affecting the same.
(3) That the liabilities and duties of the transferor Company i,e, petitioner No,1 in accordance with the Scheme of Arrangement for Merger along with "Annexure-A" thereto, be transferred without further act or deed to petitioner No,2 and accordingly the same shall, pursuant to section 287(2) of the Ordinance, be transferred to and become the liabilities and duties of petitioner No,2 with effect from July 1, 2009. The quantum of liabilities, after merger, shall remain the same.
(4) That the remaining liabilities and duties of petitioner No,1, in accordance with the Scheme of Arrangement for Merger along with "Annexure-B" thereto, be transferred without further act or deed to petitioner No,3 and accordingly the same shall, pursuant to section 287(2) of the Ordinance, be transferred to and become the liabilities and duties of petitioner. No,3 with effect from July 1, 2009.
The quantum of liabilities, after merger, shall remain the same.
(5) That all existing personal guarantees and mortgages on fixed assets on petitioner No,1 and petitioner No,2 will remain unimpaired. The charges on current assets will be in the nature of Joint Pari Passu Charge, in respect of Running Finance Facilities and such other facilities in the nature of long term facilities as are granted by Banks/Financial Institutions.
(6) That all pending legal proceedings instituted by or against petitioner No,1 be continued by or against petitioner No,2.
(7) That the authorized and paid up issued share capital of petitioners Nos.2 and 3 be altered in line with the arrangement of the Scheme and the Memorandum and Articles of petitioners Nos.2 and 3 be amended accordingly.
(8) That petitioner No,1 within 10 days after the date of this order, shall cause a certified copy of this order to be delivered to the Registrar of Companies for registration and on such certified copy being so delivered, petitioner No,1 shall stand dissolved and the Registrar of Companies shall place all documents relating to petitioner No,1, and registered with him on the file kept by him in relation to petitioner(s) Nos.2 and 3 and the files relating to the said three Companies shall be consolidated accordingly; and SCHEDULE Part-I ' Petitioner No,1, as of June 30, 2009 has freehold ownership of the following properties:--
(i) Punjab College of Science, located at 151-Ferozepur Road, Lahore encompassing an aggregate area of 13 Kanals, 15 Marlas and 107 Sq. Ft.
(ii) Punjab College of Commerce (Girls Campus), located in Old Muslim Town, Lahore covering a total area of 2 Kanals, 7 Marlas and 61 Sq. Ft.
(iii) An open commercial plot, located at 2 Alfateh Avenue Old Muslim Town, Lahore spread over an area of 1 Kanal and 18 Marlas;
(iv) An open commercial plot, located at 4-Noon Avenue Old Muslim Town, Lahore, covering an area of 3 Kanals, 10 Marlas and 112 Sq. Ft.;
(v) PCC Okara.
Part-II ' The leasehold properties of petitioner No,1, as of June 30, 2009 that will vest in EEL post-merger are as follows:--
(i) Punjab College of Commerce, Lahore, located at 1-Noon Avenue, Muslim Town, Lahore.
(ii) Punjab College of Commerce (City Campus), Lahore located at 314-Riwaz Garden, Chauburji, and Lahore.
(iii) Punjab College of Commerce (New Campus), located at 3-Noor Avenue, Muslim Town, Lahore.
(iv) Punjab College of Commerce, Rahim Yar Khan, located at Khan Pur Road, Rahim Yar Khan.
(v) Punjab College of Commerce, Cantt., Rawalpindi, located at 661-Peshawar Road., Rawalpindi Cantt.
(vi) Punjab College for Women Multan, located Rashidabad Chowk, Khanewal Road, Multan.
(vii) Punjab College for Women Sargodha, located at 87-A, Satellite Town, Sargodha.
(viii) Punjab College of Science, Multan, located at Rashidabad Chowk, Khanewal Road, Multan.
(ix) Punjab College of Science Sargodha, located at 2-Khayaban-e-Sadiq, Sargodha.
(x) Punjab College of Science, Rahim Yar Khan, located at Khan Pur Road, Rahim Yar Khan.
(xi) Punjab College of Commerce Gujrat, located at G.T. Road, Gujrat.
(xii) Punjab College of Commerce, Bahawalpur, located at 26-C, Shabir Shaheed Road, Model Town, Bahawalpur.
' The leasehold properties of petitioner No,1, as of 30 June, 2009, that will vest in NCS post-merger are as follows:-
(i) Punjab College of Commerce, Faisalabad, located at 23-A, Batala Colony, Faisalabad.
(ii) Punjab College of Commerce, Rawalpindi, located at D-464/2, 6th Road, Satellite Town, Rawalpindi.
(iii) Punjab College of Commerce, Islamabad, located at Shahrah-e-Soharwardy, Abpara Market, Islamabad.
(iv) Punjab College of Commerce, Gujranwala, located at 29-A Civil Line, Session Court Road, Gujranwala.
(v) Punjab College of Commerce, Sialkot, located at New Pearl Building Maharaja Road, Sialkot.
(vi) Punjab College for Women Faisalabad, located at 108-C, People Colony No,1, Jaranwala Road, Faisalabad.
(vii) Punjab College for Women Gujranwala, located at Mian Zia-ul-Haq Road, Civil Line, Gujranwala.
(viii) Punjab College of Science Faisalabad, located at P-404, Tezab Chowk, Jaranwala Road, Faisalabad.
(ix) Punjab College of Science Rawalpindi, located at D-464/2, 6th Road, Satellite Town, Rawalpindi.
(x) Punjab College of Science Islamabad, located at Shahrah-e-Soharwardy Abpara, Islamabad.
(xi) Punjab College of Science Gujranwala, located at 29-A, Civil Lines, Session Court Road, Gujranwala.
(xii) Punjab College of Science Sialkot, located near Pearl Building Maharaja Road, Sialkot.
Part-III ' There are no stock(s), shares, debentures and other chooses in action of petitioner No, 1.
' Disposed of.