Delhi High Court
Dayco Engine Systems Private ... vs .............. on 9 December, 2014
$~41
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Co. Appl. (M) No. 165/2014
IN THE MATTER OF
DAYCO ENGINE SYSTEMS PRIVATE LIMITED
....Applicants
Through: Mr. Sandeep Bhuraria,
Advocate for the
Applicants.
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 09.12.2014
SANJEEV SACHDEVA, J (ORAL)
1. This is first motion joint Application under section 391
to 394 of the Companies Act, 1956 ("Act") in
connection with the Scheme of Amalgamation
("Scheme") of Dayco Engine Systems Private Limited
(hereinafter referred to as Transferor Company) with
Dayco Power Transmission Private Limited
(hereinafter referred to as Transferee Company)
(hereinafter 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,
within the jurisdiction of this Court.
3. The details of the dates of incorporation of the
Applicant Companies, its authorized, issued,
subscribed and paid up capital have been enclosed with
the Application.
4. The certified copy of the Memorandum and Articles of
Association, latest Accounts as on 31.03.2014 of the
Applicant Companies has 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
the date of the present Application.
6. The proposed Scheme has been approved by the Board
of Directors of the Applicant Companies. Copies of the
Board Resolutions have been filed along with the
Application.
====================================================
7. The status of the Shareholders, Secured and Unsecured
Creditors of the Applicant Companies and the consents
obtained by them for the proposed Scheme are as
follows:
Company No. of Consent No of Consent No of Consent
Share Given Secured Given Unsecured Given
holder Creditor Creditor
Company (95.10% in
value)
Company (92.92% in
value)
8. A prayer has been made for dispensation from the
requirement of convening the meetings of the
Shareholders, Secured and the Unsecured Creditors of
the Applicant Companies.
9. In view of the written consents/NOC given by all the
Shareholders of the Applicant Companies, the
requirement of convening meeting of Shareholders of
the Applicant Companies is dispensed with.
10. In view of the written consents/NOC given by the
Secured Creditors of the Applicant Companies, the
====================================================
requirement of convening the meeting of the Secured
Creditors of the Applicant Companies is dispensed
with.
11. With regard to the Unsecured Creditors of the
Transferor and Transferee Company, it is submitted
that M/s. Dayco Europe S.r.l holds nearly 100%
shareholding. It is submitted that the Transferor
Company and Transferee Company are wholly owned
Subsidiary of M/s. Dayco Europe S.r.l, which is a
Company incorporated in Italy.
12. Learned Counsel for the Applicants submits that in
terms of legal requirements in Italy, the Companies do
not issue Board Resolution for such purposes. It is
submitted that the said Company has given its consent
and „no objection‟ to the Scheme of Amalgamation.
13. In view of the written consents/NOC given by 40 out of
85 (constituting 95.10% in value) of the Unsecured
Creditors of the Transferor Company, the requirement
of convening the meeting of the Unsecured Creditor of
the Transferor Company is dispensed with.
====================================================
14. In view of the written consents/NOC given by 36 out of
72 (constituting 92.92% in value) of the Unsecured
Creditors of the Transferee Company, the requirement
of convening the meeting of the Unsecured Creditor of
the Transferee Company is dispensed with.
15. In respect of the written consents/NOC given by the
Corporate Unsecured Creditors of the Transferee
Company, namely M/s. Gallay India Pvt. Ltd, M/s.
Garima Vikas Metals Pvt. Ltd. And M/s. Dayco Europe
S.r.l, the Board Resolution has not been enclosed along
with respective "No Objection Certificate". The
Applicant is directed to issue a specific advance notice
to the said corporate un-secured creditors at the time of
moving of the second motion calling for their
objection, if any, to the Scheme and file proof of
service of the said notice along with the second motion
petition.
16. The Application stands allowed in the aforesaid terms.
Order Dasti.
SANJEEV SACHDEVA, J
DECEMBER 09, 2014/st
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