Delhi High Court
Beumer Technology India Pvt. Ltd vs ............. on 8 September, 2014
Author: Sanjeev Sachdeva
$~6
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Co. Appl. (M) No. 96/2014
IN THE MATTER OF
BEUMER TECHNOLOGY INDIA PVT. LTD. ...Applicants
Through: Mr. Karan Khanna and Ms.
Asmita Kumar Advocates for
Applicant Companies.
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 08.09.2014
SANJEEV SACHDEVA, J (ORAL)
1. This is a first motion joint Application under sections
391 to 394 of the Companies Act, 1956 ("Act") in
connection with a Scheme of Amalgamation
("Scheme") of Beumer Technology India Private
Limited (hereinafter referred to as Transferor
Company) with Enexco Teknologies India Limited
(hereinafter referred to as Transferee Company)
(hereinafter all Companies collectively referred to as
Applicant Companies) and their respective
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Shareholders. The Scheme has been 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.
3. The details with regard to the date of incorporation of
Applicant Companies, their Authorized, Issued,
Subscribed and Paid up Capital have been set out in the
present application.
4. Copies of the Memorandum and Articles of
Association as well as the latest audited Annual
Accounts for the year ended 31st March, 2013 of the
Applicant Companies have also been enclosed with the
present application.
5. Learned Counsel for the Applicant Companies submits
that no proceeding under sections 235 to 251 of the Act
is pending against any of the Applicant Companies as
on the date of the present affidavit in support of
summon.
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6. The proposed Scheme has been approved by the Board
of Directors of all the Applicant Companies. Copies of
the Board Resolutions have been filed along with the
present application.
7. The status of the Shareholders, Secured and Un-secured
Creditors of the Transferor Company and Transferee
Company is apparent from the chart given below:-
Company No. of Consent No. of Consent No. of Consent
Share Given Secured Given unsecured Given
holders Creditors Creditors
Transferor 2 All 1 All 66 Not
Company given
Transferee 2 All 4 All 569 Not
Company given
8. A prayer has been made for dispensation of the
requirement of convening meetings of Shareholders,
Secured Creditors and Unsecured Creditors of the
Applicant Companies.
9. In view of the written consents/NOC given by the
shareholder of Transferor Company and Transferee
Company the requirement of convening meetings of
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Equity Shareholders of the Transferor Company and
Transferee Company are dispensed with.
10. The sole Secured Creditor of the Transferor Company,
namely Deutsche Bank (Corporate Banking) has given
a written consent/NOC, however, the Board Resolution
has not been enclosed along with "No Objection
Certificate". The applicant is directed to issue a
specific notice to the said Secured Creditor at the time
of moving of the second motion calling for their
objection, if any, to the Scheme. Further, the
requirement of convening meeting of Secured Creditor
of the Transferor Company is dispensed with.
11. Written consents/NOC has been given by the all four
Secured Creditors of the Transferee Company, namely
Deutsche Bank (Global Banking), Canara Bank, HDFC
and State Bank of Patiala, however, the Board
Resolution has not been enclosed along with respective
"No Objection Certificate". The Applicant is directed
to issue a specific notice to the said Secured Creditors
at the time of moving of the second motion calling for
their objection, if any, to the Scheme. Further the
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requirement of convening meeting of Secured Creditors
of the Transferee Company is dispensed with.
12. Learned Counsel for the Applicants submits that the
Net Worth of the Applicant companies is positive as
per the certificate issued by Manish Ravi & Associates,
Chartered Accountants dated 20th August 2014 and the
Net Worth of the Transferor company will get added to
the Net Worth of the Transferee Company pursuant to
the merger and therefore, the rights and interests of the
unsecured creditors of the Applicant companies will
not be adversely affected and in fact will be placed in a
better position vis-à-vis their security post
amalgamation. The Applicants, therefore, prays that the
requirement of convening and holding the meeting of
the unsecured of the Applicant Companies may be
dispensed with.
13. In support of his submissions, the learned Counsel for
the Applicant Companies placed reliance on the
judgments of this Court in the matter of In Re.:
Scheme of Amalgamation of O C Denims and Special
Finishes Limited & Anr. [CA (M) No. 86/2013
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decided on 9 th July 2013]; In Re.: Scheme of
Amalgamation of M/s BRY-AIR (Asia) Pvt. Ltd. &
Anr [CA (M) No. 84/2013 decided on 5 th July 2013];
In Re.: Scheme of Amalgamation of M/s Global
Digital Technologies Limited with MVL Industries
Limited [CA (M) No. 108/2012 decided on 2 nd July
2012]; and In Re.: Scheme of Amalgamation of
Vodafone Essar Ltd. & Ors and Vodafone Essar
Infrastructure Ltd. [CA (M) No. 113/2010 decided on
29th May 2010] wherein this Court, under similar
circumstances, has dispensed with the requirement of
convening and holding the meeting of the secured and
unsecured creditors. The learned Counsel has also
placed on record the net worth certificate issued by
Manish Ravi & Associates, Chartered Accountants
dated 20 th August 2014. The certificate shows that the
pre-amalgamation Net Worth of the Transferor
company is Rs.20,99,89,222/- and the pre and post
amalgamation net worth of the Transferee Company is
Rs.82,45,28,941/- and would be Rs.1034,51,88,164/-
respectively. Further, post-amalgamation, the value of
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debt (Secured and Unsecured Creditors) of the
Transferee company would be Rs.104,54,55,314/-
against the value of the assets of Rs.186,99,84,225/- (at
their respective fair values), therefore, the interests of
the creditors of either of the Applicant companies
would not be adversely affected and would be placed in
a better position vis-à-vis their security post-
amalgamation.
14. In view of the above and considering the law as laid
down, the requirement of convening and holding the
meetings of the unsecured creditors of the Applicant
companies are dispensed with.
15. The Application is allowed in the aforesaid terms.
Order Dasti.
SANJEEV SACHDEVA, J
SEPTEMBER 08, 2014/sv
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