Delhi High Court
M/S Kobelco Construction ... vs ---- on 19 September, 2012
Author: Indermeet Kaur
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:19.9.2012
+ COMPANY PETITION NO.252/2012
IN THE MATTER OF:
THE COMPANIES ACT, 1956
AND
PETITION UNDER SECTION 101 OF THE COMPANIES ACT,
1656
AND
M/S KOBELCO CONSTRUCTION EQUIPMENT INDIA PVT.
LTD.
... Petitioner Company
Through: Mr.Virender Ganda, Sr. Advocate
with Mr. Santosh Giri, Advocate
for the Petitioner.
Mr.K.S.Pradhan, Dy. Registrar of
ROC on behalf of R.D.(North).
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
C.P.No.252/2012 Page 1 of 6
INDERMEET KAUR, J. (Oral)
1. This petition under Section 101 of Companies Act, 1956
(hereinafter referred to as „the Act‟) has been filed by M/s
Kobelco Construction Equipment India Private Limited
(hereinafter referred to as the „Petitioner company‟) for
confirming the reduction of its share capita.
2. The registered office of the petitioner company is situated at New
Delhi, within the jurisdiction of this court.
3. The petitioner company has been incorporated under the
Companies Act, 1956 on 22nd November, 2006 with the Registrar
of Companies, NCT of Delhi & Haryana at New Delhi.
4. The authorised share capital of the petitioner company is
Rs.200,00,00,00 divided into 20,00,00.000 equity share of Rs.10/-
each. The issued, subscribed and paid up share capital of the
Company was Rs.200,00,00,000 divided into 20,00,00,000 equity
shares of Rs.10/- each.
5. A copy of the Memorandum of Article of Association of the
Petitioner company has been filed on record. The audited balance
sheet, as on 31st December, 2011 of the petitioner company, along
with the report of the auditors, has also been filed.
6. It is submitted by the petitioner that the company has been
incurring losses since the last few years due to unavoidable and
diverse reasons including appreciation of Japanese Yen and US
dollar as compared to Indian Rupees and the losses of the
company, as on 31st December, 2011 have accumulated to
Rs.1,36,33,68,990/-. It is further submitted that the Board of
Directors of the Company, in order to reflect true and fair view of
the financial position and to „right size‟ the annual accounts, has
decided to write off the said accumulated losses to the extent of
Rs.1,30,00,00,000 as a result of which the share capital was also
decided to be reduced accordingly.
7. It is pleaded that the petitioner company is authorized under
Article 17 of the Articles of Association of the company to reduce
its share capital by passing a special resolution of this effect.
8. The Board of Directors of the Petitioner Company in their
meeting held on 10th May, 2012 have unanimously approved the
proposed reduction of the share capital of the petitioner company.
A copy of the resolution passed at the meeting of the Board of
Directors of the petitioner company is placed on record at pages
154-155 of the paper book.
9. A special resolution has been passed at the Extra Ordinary
General Meeting of the equity shareholders of the Petitioner
company held on 10th May, 2012 confirming the proposed
reduction of the said paid up equity share capital. A copy of the
minutes of the special resolution passed at the Annual General
Meeting is placed on record at pages 156-157 of the paper book.
10. Learned counsel for the petitioner company has submitted that the
proposed reduction does not involve either diminution of any
liability in respect of unpaid share capital or payment of any
shareholder of any paid up share capital and further that the
proposed reduction of capital does not in any way affect the
interests or rights of any of the creditors of the petitioner
company. It is further submitted that 99.87% of the creditors of
the company have already given their „no objections‟ to the
proposed reduction of the share capital.
11. In the aforesaid background, this petition is filed seeking approval
of the resolution passed at the Annual General Meeting held on
10th May, 2012. The form of Minutes proposed to be registered
under Section 103(1)(b) of the Act is mentioned at Para 15 of the
petition.
12. By order dated 21st May, 2012 citations were directed to be
published in the Delhi editions of the newspapers „Business
Standard‟ (English) and „Nav Bharat Times‟ (Hindi) in terms of
the Companies (Court) Rules, 1959. An affidavit has been filed
by the petitioner showing compliance regarding publication of
citations in the aforesaid newspapers on 5th July, 2012. Copies of
the newspaper clippings containing the publications have been
filed along with the affidavit.
13. Despite publication of notice, no objection has been received
from any creditor or any member of the public. Thus, there
appears to be no legal impediment in allowing the present
petition.
14. In response to the notice, the Regional Director (North) has filed
his affidavit/report dated 12.9.2012. The Regional Director has
not raised any objection to the proposed reduction of paid up
share capital of the petitioner company.
15. In view of the averments made in the petition and there being no
objection from any creditor or any member of the public, the
petition is hereby allowed. The resolution passed by the Petitioner
company in its Annual General Meeting held on 10th May, 2012
for reduction of its paid up share capital is approved and
confirmed. The „Form of Minutes‟ proposed to be registered
under Section 103(1)(b), as given below, is also approved:
"The issued, subscribed and paid-up share capital of Kobelco
Construction Equipments India Private Limited, is henceforth
Rs.70,00,00,000/- (rupees seventy crores only) divided into
7,00,00,000 (seven crores) equity shares of Rs.10/- (rupees ten) each,
reduced from Rs.200,00,00,000/- (rupees two hundred crores only)
divided into 20,00,00,000 (twenty crores) equity shares of Rs.10/-
(rupees ten) each. At the date of registration of this minute,
7,00,00,000 Equity Shares numbered from 1 to 7,00,00,000 has been
issued and are deemed to be fully paid up."
16. The petitioner company be dispensed with the requirement of
adding the words "and reduced" as a suffix to the name of the
Company.
17. A certified copy of this order be delivered to the Registrar of
Companies within thirty days from today. The Registrar of
Companies, on receipt of the certified copy of this order and
minutes approved by this court, is directed to register the same
and effect the necessary alteration with regard to the Company.
18. The notice of registration of this order and the resolution of the
company shall be published in the „Business Standard‟ (English)
and „Nav Bharat Times‟ (Hindi) within 14 days of the registration
aforesaid.
19. The Petitioner Company shall deposit a sum of Rs.50,000/- with
the office of Registrar of Companies.
20. The petition stands allowed in the above terms.
Dasti.
INDERMEET KAUR, J
SEPTEMBER 19, 2012
nandan
