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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:4th September, 2012
+ Co. Appl. (M) 130/2012
IN THE MATTER OF THE COMPANIES ACT, 1956 ( 1 OF 1956 )
SECTIONS 391 AND 394 AND
IN THE MATTER OF SCHEME OF ARRANGEMENT AND
IN THE MATTER OF
SUNLIGHT BUILDWELL PVT LTD ......Applicant /
Transferor Company No.1
AND
SUPER ALLIANCE MARKETING PVT LTD. ......Applicant /
Transferor Company No.2
WITH
M/S SUPERTECH LIMITED ......Applicant /
Transferee Company
THROUGH: Mr.Vivek Singh & Aflah Farooq,
Advocates
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1. This is a First Motion Joint Application under Sections 391 & 394 of the Companies Act, 1956, in connection with Scheme of Co. Appl. (M)130/2012 Page 1 of 6 Amalgamation of M/s. Sunlight Buildwell Private Limited and M/s. Super Alliance Marketing Private Limited with M/s. Supertech Limited. A copy of proposed Scheme of Amalgamation is filed along with the application. It is submitted that Registered Offices of the Transferor Companies and the Transferee Company are situated within the National Capital Territory of Delhi and are within the jurisdiction of this court.
2. It is stated on behalf of the Applicant Companies that no proceedings under Sections 235 to 251 of the Companies Act, 1956 are pending against any of the Applicant Companies as on the date of the present Application.
3. The proposed Scheme of Amalgamation has been approved by Board of Directors of all the Applicant Companies and certified copies of Resolutions are placed on record by the Applicant Companies with the Application.
4. The Transferor Company No.1 and Transferor Company No.2 have 2 shareholders each and the Transferee Company has 16 shareholders. The Shareholders of all the Applicant Companies have given their consent / No Objection in writing to the proposed Scheme of Co. Appl. (M)130/2012 Page 2 of 6 Amalgamation. Their consents / no objections have been placed on record.
5. The Transferor Company No.1 and Transferor Company No.2 have four Un-secured Creditors each who have given their consent / No Objection in writing to the proposed Scheme of Amalgamation. Their consents / no objections have been placed on record. Both the Transferor Companies do not have any secured Creditor.
6. The Transferee Company has 17 Secured and 929 Un-secured Creditors. Ld. Counsel for the Applicants prays that the requirement of convening and holding of the meetings of Secured and Un-secured Creditors may be dispensed with as both the Transferor Companies are wholly owned subsidiaries of the Transferee Company. No new shares are proposed to be issued by the Transferee Company to the shareholders of the Transferor Companies, therefore, the rights of the members of the Transferee Company shall not be affected adversely. The counsel for the applicant has referred to the audited Balance Sheet of Transferor Company No.1 as on 31.3.2011 which shows an excess of assets over liability (net) to the tune of Rs. 3,08,411/- and as per provisional balance sheet as on 31.3.2012, there is excess to the tune of Co. Appl. (M)130/2012 Page 3 of 6 Rs. 5,10,987/- . The audited Balance Sheet of Transferor Company No.2 as on 31.3.2011 shows an excess of assets over liability (net) to the tune of Rs. 5,82,868/- and as per provisional balance sheet as on 31.3.2012, there is excess to the tune of Rs. 16,10,382/-. It is stated that the Transferee Company itself is a profit making concern and is in a position to discharge all its debts and there is no likelihood that the rights of creditors of the Transferee Company will be affected adversely upon the implementation of the proposed Scheme. Reliance is placed on the judgments passed in the matter of M/s Jaycee Landbase Private Limited & Anr. CA (M) No.71/2010; M/s JPA Developers & Builders Pvt. Ltd. & Ors. CA (M) No.92/2010; M/s Ramsang Consultancy Services Pvt. Ltd. and Ors. CA (M) No.115/2010; and M/s Archies Limited and M/s Archies Online.com.Limited CA (M) Nos.127 & 128 /2008, wherein this court under similar circumstances dispensed with the requirement of the convening and holding meetings of the secured and Un-secured creditors of the Transferee Company.
7. A perusal of audited balance sheet of the Transferee company as at 31.3.2011, shows that the company is having a profit after tax of Rs.99,21,83,013/- and the reserves and surplus of the company is Co. Appl. (M)130/2012 Page 4 of 6 Rs.311,89,60,308/- and as per the provisional balance sheet, as at 31.3.2012, the company is having a profit after tax of Rs.111,15,16,330/- and the reserves and surplus of the company is Rs.423,12,58,710/-. The strong financial credentials of the Transferee Company shows that the rights of the Members and Creditors of the Transferee Company are not likely to be affected upon sanction being granted to the Scheme of Amalgamation.
8. A prayer had been made for dispensation of requirement of convening meeting of shareholders and Un-secured creditors of the Transferor companies in respect of meetings of the shareholders and secured and Un-secured creditors of Transferee Company.
9. In view of the written consent /NOC received from the Equity Shareholders of the Applicant Companies and Un-secured Creditors of Transferor Companies to the proposed Scheme of Amalgamation as placed on record and averments made in the application, the requirement of convening meeting of shareholders of the Applicant Companies and Un-secured Creditors of Transferor Companies are dispensed with. Further, in view of the submissions made in respect of the secured and Un-secured creditors of the Transferee Company and considering the Co. Appl. (M)130/2012 Page 5 of 6 fact that the Transferor Companies are wholly subsidiaries of Transferee Company which is profit making concern and is in a position to discharge all its debts and liabilities, the requirement of convening the meetings of secured and Un-secured creditors of the Transferee Company are also dispensed with.
10. The application is allowed in aforesaid terms.
Order Dasti.
INDERMEET KAUR, J SEPTEMBER 04, 2012 rb Co. Appl. (M)130/2012 Page 6 of 6