Delhi High Court
M/S Sanya Industries India ... vs ...... on 23 May, 2014
$~70
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.Appl. (M) No. 94 /2014
M/S SANYA INDUSTRIES INDIA PRIVATE LIMITED
and ANR.
........Applicants
Through: Mr. Amit Goel,
Advocate for the Applicants
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 23.05.2014
SANJEEV SACHDEVA, J (ORAL)
1. This is a first motion joint Application under sections 391 & 394 of
the Companies Act, 1956 (for short "the Act") in connection with
the Scheme of Amalgamation (for short "the Scheme") of Sanya
Industries India Private Limited (hereinafter referred to as
„Transferor Company‟) with Sanya Fibre Private Limited
(hereinafter referred to as „Transferee Company‟) [hereinafter
collectively referred to as „Applicant Companies‟]. A copy of the
proposed Scheme of Amalgamation has been filed alongwith the
present Application.
2. The registered offices of the Applicant Companies are situated at
Delhi within the jurisdiction of this Court.
3. The details with regard to date of incorporation of respective
Applicant Companies, their authorized, issued, subscribed and paid
up capital have been stated in the Application.
4. Copies of their Memorandum and Articles of Association as well as
the latest audited Balance Sheets as on 31st March, 2013 of the
respective Applicant Companies have also been enclosed with the
Application.
5. Learned Counsel for the Applicant Companies submits that no
proceedings under section 235 to 251 of the Act are pending against
any of the Applicant Companies as on the date of the present
Application.
6. The proposed Scheme has been approved by the Board of Directors
of
both the Applicant Companies. Copies of the respective Board
Resolutions have been filed along with the Application.
7. The status of the Shareholders, Secured and Un-secured Creditors of
the Applicant Companies and the consents obtained from them for
the proposed Scheme is clearly apparent from the chart given in the
application which is as below:
Company No. of Consents No. of Consents No. of Consents
Shareholders given secured given unsecured Given
creditors Creditors
Transferor company/ 5 All 3 All 4 All
Applicant No.1.
Applicant No.2
*In respect of secured creditors of the Applicant No. 2, it has been
submitted that one secured creditor stood paid off. In respect of
unsecured creditors of Applicant No. 2, it has been submitted that six
unsecured creditors stood paid off/squared off. The no-dues
certificates have been issued by the Chartered Accountant.
8. A prayer has been made for dispensation of the requirement of
convening meetings of Shareholders, Secured Creditors and
Unsecured Creditors.
9. With regard to the secured creditors Karnataka Bank Ltd. of
Transferor Company, learned counsel for the petitioner submits that
it was not possible for the Transferor Company to obtain a Board
Resolution or authorization from Karnataka Bank Ltd. However, he
undertakes that a specific notice would be issued to Karnataka Bank
Ltd. at the time of the Second Motion inviting their objection to the
scheme, if any.
10. Learned counsel for the petitioner further submits that with regard to
the Karnataka Bank Ltd., as per the „No Objection‟ Certificate, it has
been shown that there is a credit balance of Rs.9,985.16/- whereas
certain cheques had been issued by the Transferor Company which
have not been presented and as per the Books of Account, there is a
debit balance of Rs.69,285.84/- and a Bank Reconciliation Statement
has been annexed.
11. With regard to the secured creditors, Life Insurance Corporation of
India of the Transferee Company, learned counsel for the petitioner
submits that it was not possible to obtain a copy of the Board
Resolution of the Life Insurance Corporation in support of the „No
Objection‟. Learned counsel for the petitioner undertakes that notice
would be issued to the Life Insurance Corporation of India at the
time of the second motion inviting their objections, if any, to the
scheme.
12. It is noticed that there is no Resolution of the Board of Directors of
M/s. Antariksh Engineers & Builders Pvt. Ltd., which is an
unsecured creditors of Transferee Company. Learned counsel for the
petitioner submits that though they have given their consent, even if
the amount of Rs.9,37,810.29/- was to be excluded from the total
amount of unsecured credit of Rs.1,63,01,921.29/-, the other
unsecured creditors who have given their consent would be above
94% in value.
13. In view of the written consents/NOC given by all the shareholders of
the Transferor Company & Transferee Company, the requirement of
convening meeting of Shareholders of the Applicant Companies is
dispensed with.
14. In view of the written consents/NOC given by the Secured Creditors
of the Transferor Company, the requirement of convening meeting of
Secured Creditors of the Transferor Company is dispensed with. In
view of the written consent/NOC given by three out of four secured
creditors of the transferee Company and the above requirement of
convening meeting of Secured Creditors of the Transferee Company
is dispensed with.
15. In view of the written consents/NOC given by the Unsecured
Creditors of the Transferor Companies, the requirement of convening
meeting of Unsecured Creditors of the Transferor Companies is
dispensed with. In view of the written consent/NOC given by twelve
(12) out of eighteen (18) unsecured creditors of the transferee
Company and the above requirement of convening meeting of
unsecured Creditors of the Transferee Company is dispensed with.
16. The Application stands allowed in the aforesaid terms.
Order Dasti.
SANJEEV SACHDEVA,J
MAY 23, 2014
