Delhi High Court
Goyal India Pvt. Ltd. vs Indian Securities Ltd. on 12 November, 2010
Author: Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ COMPANY APPLICATION (M) No.199/2010
Date of Decision: 12th November, 2010
Goyal India Private Limited ..... Transferor Company No. 1.
Gee Enn Industries Pvt. Limited .... Transferor Company No. 2.
Alkon Trading Limited ..... Transferor Company No. 3.
Subh Luxmi Securities Pvt. Ltd. ..... Transferor Company No. 4.
Top Most Securities Pvt. Ltd. ......Transferor Company No. 5
AND
Indian Securities Limited ..... Transferee Company
Through Mr. Rajeev K. Goel, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
O R D E R (ORAL)
1. This application under Sections 391 and 394 of the Companies
Act, 1956 (Act, for short) has been filed by Goyal India Private Limited,
Gee Enn Industries Private Limited, Alkon Trading Limited, Subh
Luxmi Securities Private Limited, Top Most Securities Private Limited
(transferor company Nos. 1 to 5 respectively) and Indian Securities
Limited (transferee company) for dispensation of holding of the meeting
of the shareholders and creditors for approval, with or without
modification, the proposed scheme of amalgamation enclosed with the
application as Annexure A-8.
2. The application sets out and give details of the authorized and paid
up share capital of the transferor company Nos. 1 to 5 and the transferee
company. Memorandum and Articles of Association of the five
transferor companies and the transferee company have been enclosed.
3. Board of Directors of the five transferor companies and the
transferee company have approved this proposed scheme of
amalgamation. It is stated in the application that no proceedings under
Sections 235 and 251 of the Act are pending against the five transferor
companies and the transferee company.
COMPANY APPLICATION (M) NO. 199/2010 Page 1
4. The transferor company No. 1 has three class A and three class B
shareholders. The said shareholders have given their consent/no
objection certificates to the proposed scheme of amalgamation. It is
stated in the application that the transferor company No. 1 does not have
any secured creditor and has two unsecured creditors. The said averment
in the application is duly supported by the certificate issued by Datta
Singla and Company, Chartered Accountants. The two unsecured
creditors to whom Rs.16,575/- is payable have given their no objection
certificates/consent to the proposed scheme of amalgamation. In these
circumstances, need and requirement to call for and hold meeting of the
shareholders and creditors of the transferor company No. 1 is dispensed
with.
5. The transferor company No. 2 has thirteen class A and one class B
shareholders. The said shareholders have given their no objection
certificates/ consent to the proposed scheme of amalgamation. The
transferor company No. 2 as per the application does not have any
secured creditor and has two unsecured creditors. The said averment in
the application is supported by the certificate issued by Datta Singla and
Company, Chartered Accountants. It is stated that the total amount due
and payable to the two creditors by the transferor company No. 2 is
Rs.5,20,450/-. In these circumstances, I dispense with the need and
requirement to hold meeting of the shareholders and the creditors of the
transferor company No. 2 to consider the scheme of amalgamation.
6. The transferor company No. 3 has seven equity shareholders and
all of them have given their consent/no objection certificates to the
proposed scheme of amalgamation. As per the application, the transferor
company No. 3 does not have any secured creditor and has seven
unsecured creditors to whom Rs.13,47,648/- is due and payable. Along
with the application, the transferor company No. 3 has enclosed
consent/no objection certificates issued by six unsecured creditors to
whom Rs.13,40,148/- is due and payable. Thus, the transferor company
No. 3 has obtained no objection certificates/consent from creditors more
than 90% in value terms. The averments made in the application with
COMPANY APPLICATION (M) NO. 199/2010 Page 2
regard to the total amount due and payable by the transferor company
No. 3 to the unsecured creditors is supported by a certificate issued by
Anil Jatalia and Company, Chartered Accountants. It is stated that Anil
Jatalia and Company, Chartered Accountants are the internal auditors of
the transferor company No. 3. In view of the aforesaid factual position,
the need and requirement to hold meeting of the shareholders and
creditors of the transferor company No. 3 is dispensed with.
7. The transferor company No. 4 has seven class A and one class B
shareholder. The said shareholders have given their consent/no objection
certificates to the proposed scheme of amalgamation. As per the
averments made in the application, the transferor company No. 4 does
not have any secured creditor and has two unsecured creditors to whom
Rs.15,000/- is payable. The said averment in the application is supported
by the certificate issued by Datta Singla and Company, Chartered
Accountants. The two unsecured creditors have given their no objection
certificates/consent to the proposed scheme of amalgamation. In view of
the aforesaid factual position, need and requirement to call for the
meeting of the members/shareholders and the creditors of the transferor
company No. 4 is dispensed with.
8. The transferor company No. 5 has six class A and one class B
shareholders. The said shareholders have given their no objection
certificates/consent to the proposed scheme of amalgamation, which
have been enclosed with the application. As per the application, the
transferor company No. 5 does not have any secured creditor and has two
unsecured creditors to whom Rs.18,000/- is payable. The said averment
in the application is supported by the certificate issued by Datta Singla
and Company, Chartered Accountants. The said unsecured creditors
have given their no objection certificates/consent to the proposed scheme
of amalgamation. Accordingly, the requirement to hold meeting of the
shareholders/creditors of the transferor company No. 5 is dispensed with.
9. The transferee company has seventeen shareholders and the said
shareholders have given their consent/no objection certificates to the
proposed scheme of amalgamation, which have been enclosed with the
COMPANY APPLICATION (M) NO. 199/2010 Page 3
application. The transferee company has one secured creditor, viz.,
State Bank of Bikaner and Jaipur and the said bank has given its
consent/no objection certificate to the proposed scheme of
amalgamation. The transferee company has 101 unsecured creditors to
whom Rs.20,61,79,423/- is payable. It is stated that this includes
statutory dues amounting to Rs.52,320/-, which have been paid, leaving a
balance of Rs.20,61,27,423. Along with the application, the transferee
company has enclosed no objection certificates/consent letters from 68
unsecured creditors to whom the transferor company is liable to pay
Rs.19,43,34,059/-. Accordingly, the transferee company has been able to
obtain consent/no objection certificates from unsecured creditors 67.33%
in number and 94.32% in value terms.
10. Learned counsel for the applicant has drawn my attention to the
balance sheets and profit and loss accounts of the five transferor
companies, details of which have been placed on record along with
valuation report of shares and share exchange ratio. I have also
examined the total amount of debt due and payable by the five transferor
companies and impact thereof on the financial health of the transferee
company. Keeping in view the value of the debt due and payable by the
five transferor companies, the earnings of the five transferor companies
during the last three years and also the no objection certificates, which
have been obtained from the secured and unsecured creditors of the
transferee company, I dispense with the need and requirement to call for
meeting of the secured and unsecured creditors of the transferee
company. It may be noted that the averments made in the application
with regard to the total amount of debt due and payable by the five
transferor companies and the transferee company are duly supported by
the certificate issued by the Chartered Accountants. It is clarified that
COMPANY APPLICATION (M) NO. 199/2010 Page 4
the share exchange ratio has not been examined and the said aspect will
be examined at the time of second motion.
The application is disposed of.
DASTI.
SANJIV KHANNA, J.
NOVEMBER 12, 2010
VKR
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