Delhi High Court
N V Resorts Private Limited vs ... on 18 August, 2015
IN THE HIGH COURT OF DELHI
COMPANY APPLICATION (MAIN) NO. 51/2015
Reserved on 14th 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 & 394 of the
Companies Act, 1956
Scheme of Amalgamation of:
N V Resorts Private Limited
Applicant/Transferor Company
WITH
T & D Trading Private Limited
Non-Applicant/Transferee Company
Through Mr. Kunal Vajani & Mr. Aman
Gandhi, Advocates for the applicants
SUDERSHAN KUMAR MISRA, J.
1. This application has been filed under Sections 391 & 394 of the
Companies Act, 1956 by the applicant/transferor company seeking
directions of this court to dispense with the requirement of convening the
meetings of its equity shareholders, secured and unsecured creditors, to
consider and approve, with or without modification, the proposed
Scheme of Amalgamation of N V Resorts Private Limited (hereinafter
referred to as the applicant/transferor company) with T & D Trading
Private Limited (hereinafter referred to as the transferee company).
2. The registered office of the applicant/transferor company is
situated at New Delhi, within the jurisdiction of this Court. However, the
registered office of the transferee company is situated at Mumbai,
outside the jurisdiction of this Court. Learned counsel for the applicant
submitted that separate application filed by the transferee company in the
court of competent jurisdiction for sanction of the Scheme of
Amalgamation in respect of the transferee company has been allowed.
3. The applicant/transferor company was incorporated under the
Companies Act, 1956 on 26th August, 2005 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
4. The authorized share capital of the applicant/transferor company is
Rs.35,00,00,000/- divided into 3,50,00,000 equity shares of Rs.10/- each.
The issued, subscribed and paid-up share capital of the company is
Rs.32,38,51,000/- divided into 3,23,85,100 equity shares of Rs.10/- each.
5. Copies of the Memorandum and Articles of Association of the
applicant/transferor company and the transferee company have been
filed on record. The audited balance sheets, as on 31st March, 2014, of
applicant/transferor company and the transferee company, along with the
report of the auditors, have also been filed.
6. 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 submitted
by the applicant that the transferor company is a wholly owned subsidiary
of the transferee company and in order to reduce administrative, financial
and operational costs due to multiple entities and for synergies of
operations, it is proposed to merge the transferor company into the
transferee company. It is claimed that the Scheme will result in
rationalization and standardization of the business processes, economies
of scale and consolidation of opportunities offered by the Scheme which
will contribute to make the transferee company more profitable, thereby
further enhancing overall shareholders value.
7. So far as the share exchange ratio is concerned, the Scheme
provides that, upon coming into effect of this Scheme, the entire share
capital of the transferor company shall stand cancelled, and no new
shares shall be issued or payment made in cash or whatsoever by the
transferee company in lieu of such shares of the transferor company.
8. It has been submitted by the applicant that no proceedings under
Sections 235 and 250A of the Companies Act, 1956 are pending against
the applicant/transferor company.
9. The Board of Directors of the applicant/transferor company and the
transferee company in their separate meetings held on 15th January,
2015 have unanimously approved the proposed Scheme of
Amalgamation. Copies of the Resolutions passed at the meetings of the
Board of Directors of applicant/transferor company and the transferee
company have been placed on record.
10. The applicant/transferor company has 02 equity shareholders.
Both the equity shareholders have given their consents/no objections in
writing to the proposed Scheme of Amalgamation. There 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 applicant/transferor 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 applicant/transferor company, as on 2nd
December, 2014.
11. The applicant/transferor company has 96 unsecured creditors, as
on 2nd December, 2014. The consents of these unsecured creditors have
not been placed on record. Learned counsel for the applicant has
submitted that these unsecured creditors are revolving creditors and the
sums payable to them shall be paid in ordinary course of business of the
applicant/transferor company. He further submitted that post
amalgamation, the rights of the unsecured creditors of the
applicant/transferor company are not affected since there will be no
reduction in their claims and the assets of the transferee company will be
more than sufficient to discharge their claims. In support of his
submission, learned counsel has placed on record two certificates both
dated 4th July, 2015 issued by Mahesh Kumar Jain & Co., Chartered
Accountants, showing status of the unsecured creditors of the applicant/
transferor company as on 2nd December, 2014 & 30th June, 2015
respectively. He has submitted that a comparison from the status, as it
prevails on 2nd December, 2014 to 30th June, 2015, shows considerable
reduction in the amounts payable to the unsecured creditors, and, in fact,
complete payment also in certain cases. Learned counsel also placed on
record an affidavit-cum-undertaking of Mr. H. Subramanian, Director of
the applicant/transferor company whereby the applicant company has
undertaken to give individual notice of the date of final hearing of the
Second Motion to all its unsecured creditors as on the date on which the
order for final hearing of the Second Motion is passed, by Registered
Post A.D. and, has further undertaken to publish the notice of the date of
final hearing of the Second Motion in two local newspapers i.e. "The
Statesman" (English) and "Jansatta" (Hindi), both having circulation in
New Delhi. Learned counsel has submitted that corresponding First
Motion Petition of the transferee company filed before the Bombay High
Court has also been allowed, and meeting in that behalf have also been
dispensed with, inter alia, on the similar undertaking of the applicant,
which was duly accepted by the Bombay High Court. Learned counsel,
therefore, prays to dispense with the requirement of convening the
meeting of the unsecured creditors of the applicant/transferor company.
12. A perusal of the two certificates both dated 4th July, 2015 issued by
Mahesh Kumar Jain & Co., Chartered Accountants shows that the
amounts are being paid to the unsecured creditors in the ordinary course
of business as and when they are due and that the rights of the
unsecured creditors of the applicant/transferor company are not affected
and that there is no likelihood that any creditor of the applicant company
would be prejudiced as a result of the Scheme of Amalgamation being
sanctioned. The undertaking given by the applicant is accepted. The
applicant/transferor company shall issue individual notice of the date of
final hearing of the Second Motion to all its unsecured creditors by
Registered Post A.D. and shall also publish the notice of the date of final
hearing of the Second Motion in the Delhi editions of newspapers
"Statesman" (English) and "Jansatta" (Hindi). In view of the submissions
made at the Bar; the undertaking filed by the applicant/transferor
company and the orders passed the Bombay High Court in respect of the
transferee company, the requirement of convening the meeting of the
unsecured creditors of the applicant/transferor company, to consider,
and, if though fit, approve, with or without modification, the proposed
Scheme of Amalgamation, is dispensed with.
13. The application stands allowed in the aforesaid terms.
Dasti
SUDERSHAN KUMAR MISRA, J.
August 18, 2015
