Delhi High Court
In The Matter Of Imperia Homes Pvt ... vs .... on 30 April, 2014
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO. APPL NO. (M) 78 OF 2014
IN THE MATTER OF IMPERIA HOMES PVT LTD
Through: Mr.RajivK. Goel and
Mr.Naresh Kumar, Advocates
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 30.04.2014
SANJEEV SACHDEVA, J (ORAL)
1. This is a first motion joint Application under sections 391 &
394 of the Companies Act, 1956, in connection with the
Scheme of Amalgamation ("Scheme" for short)of Imperia
Homes Pvt Ltd with Imperia Structures Ltd. A copy of the
proposed Scheme is filed along with the Application.
2. The Registered Offices of the Transferor Company and the
Transferee Company are situated within the National Capital
Territory of Delhi and are within the jurisdiction of this Court.
3. The details with regard to the date of incorporation of
transferor and transferee company, their authorized, issued,
subscribed and paid up capital have been given in application.
4. Learned Counsel for the Applicant Companies submits 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.
5. The proposed Scheme has been approved by the Board of
Directors of both the Applicant Companies. A copy of the
board resolution has been filed alongwith the application.
6. The status of the Equity Shareholders, Preference
Shareholders, Secured and Un-secured Creditors of the
Applicant Companies and the consents obtained for the
proposed Scheme is apparent from the chart filed by the
petitioner and given below:
Company No. of Consent No. of Consent No. of Consent
Share Given Secured Given Un-secured Given
Holders Creditors Creditors
Transferor 7 All Nil N.A. 2 All
Company
Transferee 8 All Not N.A. Not N.A.
Company Equity Required Required
4 Preference All
7. A prayer has been made for dispensation of the requirement of
convening meetings of Shareholders, secured and unsecured
Creditors of the Applicant Transferor Company and of the
Transferee Company.
8. In view of the written consents/NOC obtained and averments
made in the Application, the requirement of convening
meetings of Equity Shareholders and Un-secured Creditors of
the Applicant Transferor Company and Equity Shareholders
and Preference Shareholders of the Transferee Company is
dispensed with. The Applicant Transferor Company does not
have any Secured Creditors.
9. So far as Secured and Un-secured Creditors of the Transferee
Company are concerned, Learned Counsel for the Applicants
prays for dispensation of requirement of convening and
holding these meetings in view of the fact that the Transferor
Company is a wholly owned subsidiary of the Transferee
Company. Learned Counsel submits that no new shares will be
issued by the Transferee Company on Amalgamation and the
present Scheme of Amalgamation will not affect the rights of
shareholders and creditors of the Transferee Company and
further submits that consents/NOC of Secured and Un-secured
Creditors of the Transferee Company are thus not required to
be obtained for the proposed amalgamation.
10. Learned Counsel for the Applicants prayed for dispensing
with the requirement of convening meetings of the Transferee
Company. In support of his submission, he referred to the
order dated 14.03.2013 of this Court in Bhushan International
Ltd with Arihant Techno Pack Pvt. Ltd. CA (M) 45 of 2014
and order dated 28.05.2009 of this Court in the case of
Mapsko Hotels & Resorts Pvt. Ltd. with Mapsko Builders Pvt.
Ltd. in CA (M) 117 of 2009; wherein while dispensing with
the requirement of convening meetings of Secured and Un-
secured Creditors of the Transferee Company the Court relied
on the judgment of the Bombay High Court in Mahaamba
Investments Ltd. V. IDI Ltd.; 2001 (105) Comp.Cas.16
(Bombay) wherein it was held that in case the transferor
company is wholly owned subsidiary of the transferee
company and is sought to be amalgamated with its holding
company (transferee company), then filing of an application
by the transferee company under Section 391 or 394 of the
Companies Act, 1956 would not be necessary when the
proposed scheme of amalgamation does not affect the rights
of the members or creditors of the transferee company or does
not involve a reorganization of the share capital of the
transferee company and when no shares are sought to be
issued to the members of the transferor company.
11. In the present case, the Transferor Company is a wholly
owned subsidiary of the Transferee Company. No new shares
are proposed to be issued on amalgamation. The Transferor
and Transferee Companies are not proposing any arrangement
with shareholders and creditors. The present Scheme of
Amalgamation will not affect rights of shareholders and
creditors of the Transferor and Transferee Companies. In view
of the above, the requirement of convening the meetings of the
Secured and Un-secured Creditors of the Transferee Company
is also dispensed with.
12. The Application stands allowed in the aforesaid terms.
SANJEEV SACHDEVA, J.
APRIL 30, 2014
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