Vodafone Digilink Limited vs ---
2012 Latest Caselaw 5532 Del

$~A31
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


%                         Date of Judgment:14th September, 2012

+      Co. Appl. (M) No. 147/2012

            IN THE MATTER OF COMPANIES ACT, 1956

IN THE MATTER OF

VODAFONE DIGILINK LIMITED                ....Applicant/Transferor
                                           Company No. 1
                               AND

VODAFONE SOUTH LIMITED                   ....Applicant/Transferor
                                            Company No. 2
                               AND

VODAFONE EAST LIMITED                    ....Applicant/Transferor
                                            Company No. 3
                               AND

VODAFONE CELLULAR LIMITED                ....Applicant/Transferor
                                            Company No. 4
                               AND

VODAFONE MOBILE SERVICE LIMITED .....Applicant/Transferee
                                    Company
                 Through : Mr. Rajiv Nayar, Sr. Adv. with
                           Mr.Anirudh Das, Mr. Kartik
                           Nayar and Mr. Rohan Dheman,
                           Adv.

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR
C.A. (M) No.147/2012                                      Page 1 of 8
 INDERMEET KAUR, J. (Oral)

1. This is a first motion joint application under Sections 391-394 of

the Companies Act, 1956, in connection with a Scheme of

Amalgamation among Vodafone Digilink Limit, Vodafone South

Limited, Vodafone East Limited, Vodafone Cellular Limited and

Vodafone Mobile Services Limited and their respective shareholders. A

copy of the proposed Scheme of Amalgamation is filed along with the

Application.

2. The registered offices of the Applicant/Transferor Company No.1,

the applicant/transferor Company No. 2 and the Applicant/Transferee

Company 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 ending 31 st March 2011

of the Applicant Companies and the Non Applicant Companies have

been enclosed with the Application.

5. Learned Senior 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 date of

the present Application.

6. The proposed Scheme has been approved by the Board of

Directors of the Applicant Companies and the Non Applicant

Companies. Copies of the Board Resolutions have been filed along with

the Application.

7. The status of the Equity Shareholders, Secured and Unsecured

Creditors of the Applicant Companies and the consents obtained by

them for the proposed Scheme is clearly apparent from the chart given

below:

Name of the Nos.       of    Consent      Nos.        of Consent
Company     Equity           Given        Secured        Given
            Shareholders                  Creditors
            Page No          Page No.     Page No.       Page No.
Applicant/  7                All          1              -
Transferor
Company     653              654-681      683            -
No.1
Applicant/  7                All          4              -
Transferor
Company     764              765-792      802            -
No.2
Applicant/  7                All          4              -

 Transferee
Company         989              990-1014        1015            -


Name of the Nos.      of Consent                 Nos.       of   Consent
Company     Unsecured    Given                   Preference      Given
            Creditors                            Shareholders
            Page No      Page No.                Page No.        Page No.
Applicant/  2069         -                       NA              NA
Transferor
Company     684          -                       NA              NA
No.1
Applicant/  5452         -                       2               All
Transferor
Company     804          -                       793             794-801
No.2
Applicant/  1472         -                       NA              NA
Transferee
Company     1017         -                       NA              NA

8. In view of the written consents/NOC given by all the shareholders

of the Applicant/Transferor Company No. 1, the requirement of

convening the meeting of equity shareholders of the

Applicant/Transferor Company No. 1, the requirement of convening the

meeting of equity shareholders of the Applicant/Transferor Company

No. 1 is dispensed with.

9. In view of the written consents/NOC given by all the equity

shareholders and preference shareholders of the Applicant/ Transferor

Company No. 2, the requirement of convening the meeting of equity

shareholders and preference shareholders of the Applicant/Transferor

Company No. 2 is dispensed with.

10. In view of the written consents/NOC given by all the equity

shareholders of the Applicant/Transferee Company, the requirement of

convening the meeting of equity shareholders of the

Applicant/Transferee Company is dispensed with.

11. The Applicant Companies are seeking dispensation as regards the

meetings of the Secured and Unsecured Creditors of the Applicant

Companies. As regards the requirement of convening the meeting of the

Secured Creditors of the Applicant Companies, it is submitted by the

learned Senior Counsel appearing on behalf of the Applicant Companies

that the present Scheme is a Scheme between the Applicant Companies

Nos. 1 and 2, the Transferor Company Nos. 3 and 4 and the

Applicant/Transferee Company and their respective members under

Sections 391 (1)(b) of the Companies Act, 1956. It is further submitted

that the Scheme also does not contemplate any variation of the rights of

the Secured Creditors. The Applicant/Transferee Company in terms of

the Scheme shall be taking over all the liabilities of the

Applicant/Transferor Company No. 1 and the Applicant/Transferor

Company No. 2 and undertakes to meet and discharge the same in terms

of Clauses 3.2.2 (iii) and 4.2.2(iii) of the Scheme. The Applicant

Companies also undertake that upon notice being issued by this Hon'ble

Court on the Confirmation Petition for sanction of the Scheme, the

Applicant Companies shall issue individual notice to all its Secured

Creditors as per list annexed at Annexure R, V and Y, respectively,

seeking their objections if any to the Scheme.

12. As regards, the requirement of convening the meeting of the

Unsecured Creditors of the Applicant Companies is concerned, it is

submitted that the Unsecured Trade/Sundry Creditors of the Applicant

Companies are cyclic in nature and the Applicant Companies are

meeting such obligation in the ordinary course of business. In terms of

the Scheme, there is no variation in the rights of the Unsecured

Trade/Sundry Creditors and there is no variation in the amounts owed

to such Unsecured Trade/Sundry Creditors. The Applicant/Transferee

Company in terms of the Scheme shall be taking over all the liabilities

of the Applicant/Transferor Company No. 1 and the

Applicant/Transferor Company No. 2 and undertakes to meet and

discharge the same in terms of Clauses 3.2.2 (iii) and 4.2.2 (iii) of the

Scheme. The Applicant Companies undertake to issue notice of the

Confirmation Petition to all the Unsecured Trade/Sundry Creditors at

the Petition stage as per list annexed at Annexure S, W and Z

respectively.

13. The learned Senior Counsel has further placed reliance on the

Chartered Accountant Certificate dated 10th September, 2012 stating

that as per the Scheme, there is no variation in the rights of the Secured

and Unsecured Creditors of the Applicant/Transferor Company Nos. 1

and 2 and the Applicant/Transferee Company and the amounts owed to

such Secured and Unsecured Creditors and this has also been stated by

the Applicant Companies at paras 24(b), 24(c), 25(c) , 25(d), 26(b) and

26(c) of the Affidavit in Support of Summons.

14. Accordingly the requirement of convening the meeting of the

Secured and Unsecured Creditors of the Applicant Companies is

dispensed with. The Applicant Companies shall issue notice of the

Confirmation Petition to their respective Secured Creditors as per list

annexed at Annexure R, V and Y, respectively. The Applicant

Companies shall also issue notice of the Confirmation Petition to their

respective Unsecured Creditors as per list annexed at Annexure S, W

and Z respectively.

15. It is stated that the Registered Office of the Transferor Company

No. 3 is in the State of West Bengal and the Registered Office of the

Transferor Company No. 4 is in the State of Tamil Nadu. The first

motion applications filed by the Transferor Company No. 3 and the

Transferor Company No. 4 before the High Court at Calcutta and High

Court of Judicature at Madras, respectively, were allowed vide orders

dated 29th August, 2012 and 30th August, 2012 respectively and the

meeting of Equity Shareholders, Secured Creditors and Unsecured

Creditors have not been convened by the said Courts.

16. The application stands allowed in the above terms.

INDERMEET KAUR, J SEPTEMBER 14, 2012 nandan