Delhi High Court
Bry-Air (Asia) Pvt. Ltd. & Anr. vs -- on 5 July, 2013
Author: R.V. Easwar
$~29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 5th July, 2013
+ COMPANY APPLICATION (M) NO. 84 OF 2013
BRY-AIR (ASIA) PVT. LTD. & ANR. ........Applicants
Through: Mr. Ashim Sood and Mr. Abhishek
Bansal, Advocates for the
Applicants
CORAM:
HON'BLE MR. JUSTICE R.V.EASWAR
R. V. EASWAR, J.: (ORAL)
1. This is a first motion joint application under Sections 391 to 394 of
the Companies Act, 1956 ('Act') in connection with the Scheme of
Amalgamation ('Scheme') between Bry-Air (Asia) Private Limited
(hereafter referred to as 'Transferee company') and HRG Impex
Private Limited (hereafter referred to as 'Transferor company')
[hereafter collectively referred to as 'Applicant companies']. A
copy of the proposed Scheme is enclosed 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.
CO. APPLN. (M) 84/2013 Page 1 of 4
3. The details of the dates of incorporation of the Applicant
companies, their authorized, issued, subscribed and paid up capital
have been enclosed with the application.
4. The copies of the Memorandum and Articles of Association as well
as the latest audited annual accounts for the year ending 31 st March
2012 of the Applicant companies have also been enclosed with the
application.
5. Learned counsel for the Applicant companies submits that no
proceedings under Sections 235 to 251 of the Act are pending
against the Applicant companies as on date of the present
application.
6. The proposed Scheme has been approved by the Boards of Directors
('BoDs') of the 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 set out in a table forming part of
the application which reads as under:-
CO. APPLN. (M) 84/2013 Page 2 of 4
Company No. of Consent No. of Consent No. of Consent
equity given secured given unsecured given
share- creditors creditors
holders
Transferor 2 Yes NIL N.A. 1 Yes
company
Transferee 4 Yes Dispensat- Dispensa Dispensati Dispensatio
company ion is tion is on is being n is being
being being sought for sought for
sought for sought
for
8. A prayer been made for dispensation of the meetings of the equity
shareholders and unsecured creditors of the Transferor company. In
view of the consents given by the equity shareholders and the sole
unsecured creditor, their meetings are dispensed with. Since the
Transferor company does not have any secured creditor, therefore,
the requirement of convening their meeting does not arise.
9. A prayer has been made for dispensation of the meetings of the
equity shareholders, secured creditors and the unsecured creditors of
the Transferee company. In view of the consents given by all the
equity shareholders, the requirement of convening their meeting is
dispensed with.
10. As regards the meetings of the secured and unsecured creditors of
the Transferee company, it has been submitted that the Transferee
company shall be the continuing entity post sanction of the Scheme
and would be meeting the debts towards the creditors in the normal
course of business. It is further submitted that in terms of the
CO. APPLN. (M) 84/2013 Page 3 of 4
Scheme, there is no variation in the rights of the creditors and there
is no variation in the amounts owed to such creditors. It is further
submitted that the net worth of the Transferee company as on 31st
December 2012 was `134,72,95,048/- (Rupess One Hundred Thirty
Four Crores Seventy Two Lakhs Ninety Five Thousand Forty Eight
only) and the net worth of the Transferor company as on 31 st
December 2012 was `2,20,576/- (Rupees Two Lakhs Twenty
Thousand Five Hundred Seventy Six only). As such, the
consolidated net worth of the merged entity would be
`134,74,15,624/-(Rupees One Hundred Thirty Four Crores Seventy
Four Lakhs Fifteen Thousand Six Hundred Twenty Four only) and
this shall be sufficient to meet the debts owed to the creditors of the
Transferee company. In view of the above the requirement of
convening the meetings of the secured and unsecured creditors of
the Transferee company are dispensed with.
11. The application is allowed in the aforesaid terms.
Order be given dasti
R.V. EASWAR, J.
JULY 05, 2013
Bisht
