Delhi High Court
Hcl Comnet Systems & Services ... vs ---------------------- on 7 December, 2012
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:07.12.2012
+ Company Application (M) No. 187/2012
IN THE MATTER OF THE COMPANIES ACT, 1956
(1 OF 1956)
SECTIONS 391 & 394
AND
IN THE MATTER OF SCHEME OF ARRANGEMENT
HCL COMNET SYSTEMS & SERVICES LIMITED
HCLSS/APPLICANT COMPANY-I
AND
HCL TECHNOLOGIES LIMITED
HCLT/APPLICANT COMPANY-II
Through: Mr. NPS Chawla and Ms. Simran
Sethi, Advocates for the Applicants
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1. This is a first motion joint Application under Sections 391 and
394 of the Companies Act, 1956 (for short 'Act') in connection with the
Scheme of Arrangement (for short 'Scheme') of HCL Comnet Systems
& Services Limited and HCL Technologies Limited. A copy of the
proposed Scheme of Arrangement is filed along with the Application.
2. The registered offices of the Applicant Companies are situated
within the National Capital Territory of Delhi and are within the
jurisdiction of this Court.
3. Details with regard to the date of incorporation of the Applicant
Companies, their authorized, issued, subscribed and paid up capital have
been given in the Application.
4. Copies of the Memorandum and Articles of Association as well as
the latest audited Annual Accounts for the year ended 30th June, 2012 of
both the Applicant Companies have also been enclosed with the
Application.
5. Learned Counsel for the Applicant Companies submitted 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.
6. The proposed Scheme has been approved by the Board of
Directors of both the Applicant Companies. Copies of the Board
Resolutions have been filed along with the Application.
7. The status of the Shareholders, Secured and Un-secured Creditors
of the Applicant Companies and the consents obtained from them for the
proposed Scheme is clearly apparent from the chart given in the
application which is as below:
Company No. of Consent No. of Consent No. of Consent
Share Given Secured Given Un- Given
secured
Holders Credito
rs Creditors
HCLSS/Ap 18 10 2 All 102 Consents
plicant not
Company -I obtained
HCLT/ 79089 Consents 6 All 1071 Consents
Applicant not not
Company - obtained obtained
II
8. A prayer has been made for dispensation of the requirement of
convening meetings of the Equity shareholders and Unsecured Creditors
of HCLSS/Applicant Company -I and for the Unsecured Creditors of
HCLT/ Applicant Company -II. Further, separate meetings of the
Secured Creditors of the HCLSS/Applicant Company -I and Equity
Shareholders, Secured Creditors of the HCLT/ Applicant Company -II
are proposed to be held under the supervision of this Court.
9. In view of the written consents/ NOC given by 99.97% of the
Equity Shareholders of HCLSS/Applicant Company -I representing
majority in number and more than 3/4th in value of the total Equity
Shareholders, the requirement of convening meeting of Equity
Shareholders of HCLSS/Applicant Company -I has been dispensed
with.
10. In view of the reasons stated in paragraph 6 page 14 of the
Company Application (Main) No. 187/2012, the requirement of
convening the meeting of the Unsecured Creditors of the
HCLSS/Applicant Company - I has been dispensed with. The reasons
stated therein are as follows:
(a) That HCLT/Applicant Company-II is a public listed company
who's net worth post demerger is Rs. 6810.06 Cr which in
comparison to the pre demerger net worth of Rs. 935.50 Cr. of
HCLSS/Applicant Company -I is much higher. Copy of the
certificate confirming the pre and post demerger net worth of
HCLSS/Applicant Company-I and HCLT/Applicant Company-II,
duly certified by PRYD Associates, Chartered Accountants, have
also been enclosed with the Application.
(b) On becoming the unsecured creditors of HCLT/Applicant
Company-II, the unsecured creditors of HCLSS/Applicant Company
-I shall be benefitted with a better liquidity position in comparison to
the liquidity position they were previously enjoying as the unsecured
creditors of HCLSS/Applicant Company -I. The liquid assets
(including the cash and bank balances) of HCLSS pre demerger are
to the tune of Rs.812.43 Cr whereas the liquid assets (including the
cash and bank balances) of HCLT post demerger amounts to
Rs.5142.48 Cr. Copy of the certificate confirming the pre and post
demerger liquidity position of HCLSS/Applicant Company-I and
HCLT/Applicant Company-II, duly certified by PRYD Associates,
Chartered Accountants, have also been enclosed with the
Application.
11. Further, in view of the reasons stated in paragraph 9 page 18 of
the Company Application (Main) No. 187/2012, the requirement of
convening a meeting of the Unsecured Creditors of the HCLT/
Applicant Company -II has been dispensed with. The reasons stated
therein are as follows:
(a) That the proposed Scheme will not affect the rights of the
unsecured creditors of HCLT/Applicant Company-II as no
sacrifice or waiver is called from them. It may be noted that the
liabilities of the demerged undertaking that are being transferred
are to the tune of Rs. 186.74 crores whereas the assets of the
demerged undertaking of HCLSS/Applicant Company-I as on the
appointed date (Rs. 1,151.44 crores),being transferred to
HCLT/Applicant Company-II are much higher vis-à-vis the
liabilities being transferred. Accordingly, it is stated by the
Applicants that the interest of the unsecured creditors of HCLT /
Applicant Company-II shall not be prejudicially affected. The
liabilities of the Demerged Undertaking being transferred to
HCLT/Applicant Company-II, can be comfortably paid from the
assets being taken over. In fact after paying off the liabilities,
there will be a surplus of Rs. 964.70 Crores left with HCLT after
giving effect to the demerger.
(b) Also as a result of the demerger the net worth of HCLT/Applicant
Company-II will be increased by Rs. 831.81 Crores. The post
demerger net worth of HCLT/Applicant Company-II which is
approx. Rs. 6810.06 Cr. is much higher vis-à-vis the pre demerger
net worth of HCLT/Applicant Company-II (Rs. 5978.25 Cr.).
Copy of the certificate certifying the pre and post demerger net
worth of HCLT/Applicant Company-II, duly certified by PRYD
Associates, Chartered Accountants, have also been enclosed with
the Application. Accordingly, it is stated by the Applicants that
the unsecured creditors of the HCLT/Applicant Company-II shall
stand benefited from the proposed demerger.
12. Separate meetings of Secured Creditors of the HCLSS/Applicant
Company -I and Equity Shareholders, Secured Creditors of HCLT/
Applicant Company -II are proposed to be held under the supervision of
this Court. Consequently, I direct that separate meetings of Secured
Creditors of the HCLSS/Applicant Company-I and Equity
Shareholders, Secured Creditors of HCLT/Applicant Company-II shall
be held on 19th day of January 2013 at 10:30 A.M., 3:30 P.M., 01:00
P.M and respectively, at FICCI Auditorium, Federation House, 1,
Tansen Marg, New Delhi-110001.
13. Ms. Saroj Kaith, Advocate, Cell No. 9968261181 is appointed as
the Chairperson and Mr. Sanjeev Mahajan, Advocate, Cell
No.9811156437 is appointed as the Alternate Chairperson for the
meeting of Secured Creditors of the HCLSS/Applicant Company -I.
They would be paid a fee of Rs.50,000/- each. Mr. Hari Lal, Cell
No.9899600264 and Mr. Phool Chand Gupta, official of the Court, Cell
No. 8586057409 shall provide secretarial assistance to the Chairperson
and the Alternate Chairperson. They shall be paid a fee of `10,000/- each
for this purpose.
14. Mr. Kartik Nayar, Advocate, Cell No.9810426989 is appointed
as the Chairperson and Mr. Sunil Fernandis, Advocate, Cell
No.9891639491 is appointed as the Alternate Chairperson for the
meeting of Equity Shareholders of the HCLT/ Applicant Company -II.
They would be paid a fee of Rs.50,000/- each. Mr. Prem, Cell
No.9958713230 and Mr. Surender Kumar, Cell No. 9873660764 shall
provide secretarial assistance to the Chairperson and the Alternate
Chairperson. They shall be paid a fee of Rs. 10,000/- each for this
purpose.
15. Mr. Sanjay Sharawat, Advocate, Cell No.9810220522 is
appointed as the Chairperson and Mr. Apurv Chandola, Advocate, Cell
No.9650982102 is appointed as the Alternate Chairperson for the
meeting of Secured Creditors of the HCLT/ Applicant Company -II.
They would be paid a fee of Rs.50,000/- each. Ms. Vandana Chhibber,
Cell No. 9868149282 and Mr Rajender Singh, Cell No. 9968124350
shall provide secretarial assistance to the Chairperson and the Alternate
Chairperson. They shall be paid a fee of Rs. 10,000/- each for this
purpose.
16. The Applicant Companies are also directed to publish advance
notice of the aforesaid proposed meetings in 'Business Standard'
(English, Delhi Edition) and 'Business Standard' (Hindi, Delhi Edition).
The advertisements shall be published minimum 21 days in advance
before the scheduled date of meetings.
17. Individual notices of the proposed meetings would be sent by
ordinary post minimum 21 days in advance before the scheduled date of
meetings. The Chairperson will ensure that dispatch is made under
his/her supervision/or his authorized representative.
18. The quorum of the Secured Creditors of the Transferor
Company is fixed as follows:
Company Secured
Creditors
No. %
Transferor 1 10%
Company
19. The quorum of the Equity Shareholders and Secured Creditors
of the Transferee Company are fixed as follows:
Company Equity Secured
Creditors
Shareholders
% NO. %
Transferee 5000 10% 1 10%
Company
20. It is also directed that if the Quorum is not present in the
meetings, the meetings would be adjourned for 30 minutes and the
persons present (either by proxy or in person) in the meetings would be
treated as proper quorum.
21. Voting by proxy is permitted provided that the proxy in the
prescribed form and duly signed by the person entitled to attend and
vote at the aforesaid meetings or by his authorised representative, is
filed with the Company at its registered office, not later than 48 hours
before the said meetings.
22. The Chairman/Alternate Chairman shall file their reports
within 2 weeks of the conclusion of the respective meetings.
23. The application stand allowed in the aforesaid terms.
Order Dasti.
INDERMEET KAUR, J
DECEMBER 07, 2012
ns
