Delhi High Court
Imfinity India Pvt Ltd vs Excelsoft Technologies Pvt Ltd on 6 December, 2010
Author: Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ COMPANY APPLICATION (M) No.212/2010
Date of Decision: 06 December, 2010
Imfinity India Private Limited..... Transferor Company No. 1.
Imfinity Technologies Pvt. Limited .....Transferor Company No. 2.
AND
Excelsoft Technologies Pvt. Ltd. ..... Transferee Company
Through Mr. Ashish Wad and Mr.
Sameer Abhyankar, Advocates
for for the applicants.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
O R D E R (ORAL)
1. This joint first motion under Sections 391 and 393 of the
Companies Act, 1956 (Act for short) read with Company (Court)
Rules, 1959 (Rules for short) has been filed by Imfinity India Private
Limited (transferor company No.1) and Imfinity Technologies Pvt.
Limited (transferor company No.2) in respect of the scheme of
amalgamation (annexure-K). The scheme envisages amalgamation of
the two transferor companies as well as Huper LDT Private Limited
with the Excelsoft Technologies Pvt. Ltd (transferee company).
2. Registered office of the two transferor companies are located
in the National Capital Territory of Delhi and this Court has
jurisdiction to decide the present joint application made on behalf of
the two transferor companies. Registered office of Huper LDT Private
Limited and the transferee company is located in the State of
Karnataka.
3. Learned counsel for the two transferor companies states at bar
C.A.(M) 212/2010 Page 1
that no proceedings under Section 235 to 251 of the Act are pending
against the said transferor companies and transferee company.
4. Along with the application, the two transferor companies have
enclosed their Articles and Memorandum of Association. Details with
regard to the date of incorporation, authorized, subscribed and paid
up share capital of the said companies have been mentioned. Balance
sheets for the year ending 31st March, 2010 of the two transferor
companies have been placed on record. Copy of the resolutions
passed by the Board of Directors of the two transferor companies
and the transferee company approving the scheme of amalgamation
have been placed on record.
5. The two transferor companies are step down subsidiaries of
the transferee company. The shares of the two transferor companies
are held by M/s. Imfinity PTE, Singapore, which is a subsidiary of the
transferee company. No objection certificates/consents of the
shareholders of the two transferor companies have been placed on
record.
6. It is stated in the application that the two transferor companies
do not have any secured creditors. The transferor company no.2 does
not have any unsecured creditors. It is stated that transferor
company No.1 has sundry creditors to the extent of Rs.3,29,248.20/-
as on 31st March, 2010. It is stated that these sundry creditors are
trade creditors. Transferor company No.1 has enclosed no objection
certificates/consent letters from 9 trade creditors to whom
Rs.1,39,655/- was due and payable as on 31st March, 2010. My
attention is also drawn to the balance sheet for the year ending 31st
March, 2010, which shows that the transferor company No.1 had
C.A.(M) 212/2010 Page 2
accumulated reserve of more than Rs.6,59,47,850.29/-. My attention
is also drawn to the balance sheet of the transferee company
enclosed at page 154 onwards. It is pointed out that the transferee
company is a profit making company and as per the balance sheet for
the year 2009-2010, earning per share basic was Rs.235/- .
7. Learned counsel for the transferor company No.1 submits that
they shall procure no objection/consent from all the trade creditors
as on the date of filing of the second motion. He further states that
the trade creditors who are not ready and willing to give no
objection/consent, will be paid off and a certificate of the statutory
auditor will be filed stating that the trade creditors have been paid
off or have furnished no objection certificates/consents. In view of
the said statement and subject to the affidavit/consents being filed,
the need and requirement to convene and hold meeting of the
unsecured creditors of the transferor company No.1 is dispensed
with.
8. It is clarified that at this stage it has not been examined
whether meetings of the shareholders and the creditors of the
transferee company is required to be held. This will be examined at
the time of second motion. However, the transferee company is at
liberty to move an appropriate application before the jurisdictional
C.A.(M) 212/2010 Page 3
High Court. This order is subject to order(s) that may be passed by
the Karnataka High Court.
The application is disposed of.
DASTI.
SANJIV KHANNA, J.
DECEMBER 06, 2010
NA
C.A.(M) 212/2010 Page 4
