Delhi High Court
Sunlight Buildwell Pvt. Ltd. & Ors vs --------------------------- on 4 September, 2012
Author: Indermeet Kaur
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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
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
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
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
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
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
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