Delhi High Court
Sunshine Global Agro Limited vs ... on 18 August, 2015
IN THE HIGH COURT OF DELHI
COMPANY APPLICATION (MAIN) NO. 24/2015
Reserved on 10th July, 2015
Date of pronouncement: 18th August, 2015
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):
And
Application under Sections 391 to 394 of the
Companies Act, 1956 read with Rules 6 & 9 of
the Companies (Court) Rules, 1959
Scheme of Amalgamation of:
Sunshine Global Agro Limited
Applicant/Transferor Company No. 1
Sunshine Global Education Limited
Applicant/Transferor Company No. 2
WITH
L M Technobuild Private Limited
Applicant/Transferee Company
Through Mr. Saurabh Seth and
Mr.Shubham Jaiswal, Advocates for
the applicants
SUDERSHAN KUMAR MISRA, J.
1. This joint application has been filed under Sections 391 to 394 of
the Companies Act, 1956 read with Rules 6 & 9 of the Companies
(Court) Rules, 1959 by the applicant companies seeking directions of this
court to dispense with the requirement of convening the meetings of the
equity shareholders of the transferor company no. 1; equity shareholders,
secured and unsecured creditors of the transferor company no. 2 and
equity shareholders and unsecured creditors of the transferee company,
and for convening separate meetings of the secured and unsecured
creditors of the transferor company no. 1 and secured creditor of the
transferee company, to consider and approve, with or without
modification, the proposed Scheme of Amalgamation of Sunshine Global
Agro Limited (hereinafter referred to as the transferor company no. 1)
and Sunshine Global Education Limited (hereinafter referred to as the
transferor company no.2) with L M Technobuild Private Limited
(hereinafter referred to as the transferee company).
2. The registered offices of the transferor and transferee companies
are situated at New Delhi, within the jurisdiction of this Court.
3. The transferor company no. 1 was originally incorporated under
the Companies Act, 1956 on 1st June, 2004 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of Sunshine Forestry Private Limited. The company changed its
name to Sunshine Global Agro Private Limited and obtained the fresh
certificate of incorporation on 10th May, 2008. The company again
changed its name to Sunshine Global Agro Limited and obtained the
fresh certificate of incorporation on 28th May, 2008.
4. The transferor company no. 2 was incorporated under the
Companies Act, 1956 on 9th March, 2010 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
5. The transferee company was incorporated under the Companies
Act, 1956 on 2nd December, 2008 with the Registrar of Companies, NCT
of Delhi & Haryana at New Delhi
6. The present authorized share capital of the transferor company
no.1 is Rs.2,70,00,000/- divided into 27,00,000 equity shares of Rs.10/-
each. The issued, subscribed and paid-up share capital of the company
is Rs.2,39,25,000/- divided into 23,92,500 equity shares of Rs.10/- each.
7. The present authorized share capital of the transferor company
no.2 is Rs.50,00,000/- divided into 5,00,000 equity shares of Rs.10/-
each. The issued, subscribed and paid-up share capital of the company
is Rs.5,00,000/- divided into 50,000 equity shares of Rs.10/- each.
8. The authorized share capital of the transferee company is
Rs.50,00,000/- divided into 5,00,000 equity shares of Rs.10/- each. The
issued, subscribed and paid-up share capital of the company is
Rs.26,75,000/- divided into 2,67,500 equity shares of Rs.10/- each.
9. Copies of the Memorandum and Articles of Association of the
transferor and transferee companies have been filed on record. The
audited balance sheets, as on 31st March, 2014, of the transferor and
transferee companies, along with the report of the auditors, have also
been filed.
10. A copy of the Scheme of Amalgamation has been placed on record
and the salient features of the Scheme have been incorporated and
detailed in the application and the accompanying affidavit. It is claimed
by the applicants that the synergy from the combined resources of the
transferor companies and the transferee company would lead to optimum
growth and development of the business of the transferee company after
amalgamation. It is further claimed that the amalgamation will result in
increased financial strength and flexibility and will enhance the ability of
the transferee company to undertake large projects, thereby contributing
to enhancement of future business potential.
11. So far as the share exchange ratio is concerned, the Scheme
provides that, upon coming into effect of this Scheme, the transferee
company shall issue and allot equity shares to the shareholders of the
transferor companies in the following ratio:-
"50 equity shares of Rs.10/- each of the transferee company,
credited as fully paid-up, for every 01 equity share of Rs.10/-
each held by the shareholders in the transferor company no. 1."
"01 equity share of Rs.10/- each of the transferee company,
credited as fully paid-up, for every 01 equity share of Rs.10/-
each held by the shareholders in the transferor company no. 2."
12. It has been submitted by the applicants that no proceedings under
Sections 235 to 251 of the Companies Act, 1956 are pending against the
applicant companies.
13. The Board of Directors of the transferor and transferee companies
in their separate meetings held on 25th July, 2014 have unanimously
approved the proposed Scheme of Amalgamation. Copies of the
Resolutions passed at the meetings of the Board of Directors of the
transferor and transferee companies have been placed on record.
14. The transferor company no. 1 has 06 equity shareholders. 02 out
of 06, being 33.33% in number and 80% in value, have given their
consents/no objections in writing to the proposed Scheme of
Amalgamation. Their consents/no objections have been placed on
record. They have been examined and found in order. In view thereof,
the requirement of convening the meeting of the equity shareholders of
the transferor company no. 1 to consider and, if thought fit, approve, with
or without modification, the proposed Scheme of Amalgamation is
dispensed with.
15. The transferor company no. 2 has 07 equity shareholders. 06 out
of 07, being 85.7% in number and 75% in value, have given their
consents/no objections in writing to the proposed Scheme of
Amalgamation. Their consents/no objections have been placed on
record. They have been examined and found in order. In view thereof,
the requirement of convening the meeting of the equity shareholders of
the transferor company no. 2 to consider and, if thought fit, approve, with
or without modification, the proposed Scheme of Amalgamation is
dispensed with.
16. The transferee company has 03 equity shareholders. 02 out of 03,
being 66.6% in number and 92.4% in value, have given their consents/no
objections in writing to the proposed Scheme of Amalgamation. Their
consents/no objections have been placed on record. They have been
examined and found in order. In view thereof, the requirement of
convening the meeting of the equity shareholders of the transferee
company to consider and, if thought fit, approve, with or without
modification, the proposed Scheme of Amalgamation is dispensed with.
17. The transferor company no. 2 and the transferee company have 02
unsecured creditors each. Out of these 02 unsecured creditors, transferor
company no. 1 is one of the unsecured creditors in both the companies.
Mohd. Mokarram is the other unsecured creditor in both the companies,
who has given his consents/no objections in writing to the proposed
Scheme of Amalgamation. His consents/no objections have been placed
on record. They have been examined and found in order. In view thereof,
the requirement of convening the meetings of the unsecured creditors of
the transferor company no. 2 and the transferee company to consider
and, if thought fit, approve, with or without modification, the proposed
Scheme of Amalgamation is dispensed with. There is no secured creditor
of the transferor company no. 2, as on 31st March, 2013.
18. The transferor company no. 1 has 01 secured creditor and a
direction is sought to convene and hold its meeting to seek its approval to
the proposed Scheme of Amalgamation. Considering the facts and
circumstances aforesaid, the meeting of the secured creditor of the
transferor company no. 1 is directed to be held on 21st September, 2015
at 10:30 am at the registered office of the company at D-30, Madhuban
Road, 3rd Floor, Shakarpur Extension, Delhi - 110092. Mr. Kamal Mehta,
Advocate, (Mobile No. 9810249271) is appointed as the Chairperson and
Mr. Jitender Bhardwaj, Advocate, (Mobile No. 9811672065) is appointed
as the Alternate Chairperson to conduct the said meeting. The Quorum of
the meeting of the secured creditor of the transferor company no. 1 shall
be 1 in number.
19. The transferor company no. 1 has 19781 unsecured creditors and
a direction is sought to convene and hold their meeting to seek their
approval to the proposed Scheme of Amalgamation. Considering the
facts and circumstances aforesaid, the meeting of the unsecured
creditors of the transferor company no. 1 is directed to be held on 21st
September, 2015 at 12:30 pm at the registered office of the company at
D-30, Madhuban Road, 3rd Floor, Shakarpur Extension, Delhi - 110092.
Mr. Mukesh Sukhija, Advocate, (Mobile No. 9810296468) is appointed as
the Chairperson and Mr. Harpreet Singh, Advocate, (Mobile No.
9811267302) is appointed as the Alternate Chairperson to conduct the
said meeting. The Quorum of the meeting of the unsecured creditors of
the transferor company no. 1 shall be 200 in number and more than 25%
in value of the total unsecured debt.
20. The transferee company has 01 secured creditor and a direction is
sought to convene and hold its meeting to seek its approval to the
proposed Scheme of Amalgamation. Considering the facts and
circumstances aforesaid, the meeting of the secured creditor of the
transferee company is directed to be held on 21st September, 2015 at
11:30 am at the registered office of the company at D-30, Madhuban
Road, 3rd Floor, Shakarpur Extension, Delhi-110092. Ms. Payal Chawla,
Advocate, (Mobile No. 9811777786) is appointed as the Chairperson and
Ms. Madhuri Jain, Advocate, (Mobile No. 9999814492) is appointed as
the Alternate Chairperson to conduct the said meeting. The Quorum of
the meeting of the secured creditor of the transferee company shall be 1
in number.
21. In case the quorum as noted above for the above meetings is not
present at the meetings, then the meetings shall be adjourned by half an
hour, and thereafter the persons present and voting shall be deemed to
constitute the quorum. For the purpose of computing the quorum the
valid proxies shall also be considered, if the proxy in the prescribed form
duly signed by the person entitled to attend and vote at the meetings is
filed with the registered offices of the applicant companies at least 48
hours before the meetings. The Chairpersons and Alternate
Chairpersons shall ensure that the proxy registers are properly
maintained.
22. The Chairpersons and Alternate Chairpersons shall ensure that
notices for convening the aforesaid meetings of the secured and
unsecured creditors of the transferor company no. 1 and the secured
creditor of the transferee company, along with copies of the Scheme of
Amalgamation and the statement under Section 393 of the Companies
Act, 1956, shall be sent to the secured and unsecured creditors of the
transferor company no. 1 and the secured creditor of the transferee
company by ordinary post at their registered or last known addresses at
least 21 days before the date appointed for the meetings, in their
presence or in the presence of their authorized representatives. Notice of
the meeting of unsecured creditors of the transferor company no. 1 shall
also be published in the Delhi, Bihar and West Bengal editions of the
newspapers "Times of India" (English) and "Navbharat Times" (Hindi) in
terms of the Companies (Court) Rules, 1959 at least 21 days before the
date appointed for the meetings. Since there is only one secured creditor
each of the transferor company no. 1 and the transferee company and
individual notices are directed to be issued to them, therefore, the
requirement of publishing notices in the newspapers in respect of the
meetings of the secured creditors of the transferor company no. 1 and
the transferee company is dispensed with.
23. The Chairpersons and Alternate Chairpersons will be at liberty to
issue suitable directions to the management of the applicant companies
so that the aforesaid meetings of the secured and unsecured creditors of
the transferor company no. 1 and the secured creditor of the transferee
company are conducted in a just, free and fair manner.
24. The fee of the Chairpersons and the Alternate Chairpersons for the
aforesaid meetings shall be Rs.50,000/- each in addition to meeting their
incidental expenses. The Chairpersons will file their reports within two
weeks from the date of holding of the aforesaid meetings.
25. The application stands allowed in the aforesaid terms.
Dasti
SUDERSHAN KUMAR MISRA, J.
August 18, 2015
