Delhi High Court
The Indo-British Engineering Co. ... vs Globe Panel Industries India Pvt. ... on 18 October, 2010
Author: Sanjiv Khanna
28.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ COMPANY APPLICATION (M) NO. 190/2010
Date of decision: 18th October, 2010
THE INDO-BRITISH ENGINEERING CO. PVT. LTD
....Transferor Company No. 1.
S.N. SALES AND PLYWOOD PVT. LTD...
... Transferor Company No. 2.
RINA AGRO AND TIMBER PRODUCTS PVT. LTD...
......Transferor Company No. 3.
GLOBE ENGINEERING & MANUFACTURING COMPANY
PVT. LTD. ...Transferor Company No. 4.
RAJAN STEEL PLY COMPANY PRIVATE LIMITED
.....Transferor Company No. 5.
AGRO STEEL & CASTINGS PRIVATE LIMITED
....Transferor Company No. 6.
WITH
GLOBE PANEL INDUSTRIES INDIA PRIVATE LIMITED
...Transferee Company.
Through Mr. Ashish Middha, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER (ORAL)
1. The present application under Sections 391 and 394 of the
Companies Act, 1956 has been filed on behalf of the Indo British
Engineering Company Private Limited, S.N. Sales and Plywood Private
Limited, Rina Agro and Timber Products Private Limited, Globe
Engineering and Manufacturing Company Private Limited, Rajan Steel Ply
Company Private Limited and Agro Steel & Castings Private (hereinafter
CA(M) No. 190/2010 Page 1
referred to as transferor company No. 1, transferor company No. 2,
transferor company No. 3, transferor company No. 4, transferor company
No.5 and transferor company No. 6 respectively) seeking merger and
amalgamation with Globe Panel Industries India Private Limited
(hereinafter referred to as the transferee company).
2. Along with the application, copy of the scheme has been enclosed. It
is stated in the application that the scheme has been approved by the Board
of Directors of the respective transferor companies and the transferee
company. The application is also supported by affidavits of the Principal
Officer of the transferor companies and the transferee company.
3. As per the application, the appointed date of the scheme is 1 st July,
2010.
4. The transferor company No.1 has eight shareholders and they have
given consents approving/accepting the scheme. The consents given by the
said shareholders have been enclosed. The transferor company No. 1 has
one secured creditor and no unsecured creditor as per the certificate given
by Mr. Manoj Kumar Gupta on behalf of Manoj Ambuj and Associates,
Chartered Accountants as on the cut off date, i.e., 31st July, 2010. The
applicant has enclosed certificate given by the secured creditor, the HDFC
Bank Limited. The certificate states that the foreclosure amount has been
deposited and the loan has been foreclosed.
5. The transferor company No. 2 has three shareholders, who have
given their consents/no objection certificates to the proposed scheme. The
applicant has enclosed certificate given by Mr. Manoj Kumar Gupta
proprietor Manoj Ambuj and Associates, Chartered Accounts stating that he
has carried out limited audit of transferor company No. 2 and as on 31st
July, 2010 the transferor company No. 2 had one secured creditor and four
unsecured creditors. The secured creditor, viz., Tata Motors Finance
Limited has given a certificate stating that the loan amount has been
foreclosed and entire payment has been received. The four unsecured
CA(M) No. 190/2010 Page 2
creditors have given no objection certificates/consents to the proposed
scheme.
6. As per the application, the transferor company No. 3 has three
shareholders, who have given their consents/no objection certificates to the
proposed scheme. Along with the application, the applicant has enclosed
certificate of Mr. Manoj Kumar Gupta proprietor of Manoj Ambuj and
Associates, Chartered Accountants, who has stated that he has carried out
limited audit of the transferor company No. 3 for the purpose of ascertaining
the secured and unsecured creditors of transferor company No. 3 as on 31 st
July, 2010. As per his certificate, the transferor company No. 3 did not have
any secured creditor on the said date and had two unsecured creditors. The
two unsecured creditors have given their no objection/consents to the
proposed scheme.
7. The transferor company No. 4 has four shareholders and the said
shareholders have given their no objection/consents to the proposed scheme
of amalgamation/transfer. The applicant has enclosed certificate of Mr.
Manoj Kumar Gupta proprietor of Manoj Ambuj and Associates, Chartered
Accountants. It is stated in the certificate that the said Chartered
Accountant has carried out limited audit of the transferor company No. 4
and as on 31st July, 2010 transferor company No. 4 had two secured
creditors and seven unsecured creditors. It is stated that the State Bank of
India had two accounts and, therefore, in the certificate Mr. Manoj Kumar
Gupta has stated that there were two secured creditors. It is stated that the
State Bank of India is the only secured creditor. No objection
certificates/consents given by the State Bank of India have been enclosed.
The seven unsecured creditors have given their no objection certificates to
the proposed scheme of amalgamation/transfer.
8. The transferor company No. 5 has four shareholders, who have given
their consent to the proposed scheme of amalgamation/transfer. As per the
certificate issued by Mr. Manoj Kumar Gupta proprietor of Manoj Ambuj
and Associates, Chartered Accountants, there were three secured creditors
CA(M) No. 190/2010 Page 3
and fifteen unsecured creditors of the transferor company No. 5 as on 31st
July, 2010. The applicant has enclosed two no objection certificates issued
by the State Bank of India in respect of two separate loan accounts. It is
stated that the State Bank of India has two separate loan accounts and Mr.
Manoj Kumar Gupta proprietor of Manoj Ambuj and Associates, Chartered
Accountants in his certificate has treated the two loan accounts as two
separate secured creditors. The third secured creditor HDFC Bank has
issued a certificate stating that the loan amount has been paid and no further
amount is due. The fifteen unsecured creditors have given their no
objection certificates/consents to the proposed scheme of
amalgamation/transfer.
9. The transferor company No. 6 has five shareholders, who have given
their no objection certificates/consent forms. As per the certificate issued
by Mr. Manoj Kumar Gupta proprietor of Manoj Ambuj and Associates,
Chartered Accountants, the transferor company No. 6 had one secured
creditor and fifteen unsecured creditors as on 31 st July, 2010. The secured
creditor State Bank of India has given their no objection certificate to the
proposed scheme of amalgamation/transfer. The applicant has also enclosed
no objection certificates of fifteen unsecured creditors.
10. The transferee company has ten shareholders, who have given their
no objection certificates/consents to the proposed scheme of amalgamation.
The applicant has enclosed certificate of Mr. Manoj Kumar Gupta
proprietor of Manoj Ambuj and Associates, Chartered Accountants, who
has, inter alia, confirmed that the transferee company has no secured
creditor and has one unsecured creditor as on 31 st July, 2010. The applicant
has enclosed no objection certificate of the one unsecured creditor with the
application.
11. In view of the no objection certificates furnished by all the
shareholders of the transferor company Nos. 1 to 6 and the transferee
company and the secured and unsecured creditors, as the case may be, of the
CA(M) No. 190/2010 Page 4
transferor companies and the transferee company, I dispense with the
requirement to hold meeting of the shareholders, secured and unsecured
creditors. The application is accordingly allowed. It is, however, clarified
that this Court has not examined the question of valuation of shares and
share exchange ratio. This aspect will be examined at the time of second
motion.
The application is disposed of.
DASTI.
SANJIV KHANNA, J.
OCTOBER 18, 2010
VKR
CA(M) No. 190/2010 Page 5
