Bijli Holdings Private Limited vs ...
2015 Latest Caselaw 9575 Del

                   IN THE HIGH COURT OF DELHI
              COMPANY APPLICATION (MAIN) NO. 180/2015

                                      Reserved on 7th December, 2015
                          Date of pronouncement: 23rd December, 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

Scheme of Amalgamation of:

Bijli Holdings Private Limited
                                           Applicant/Transferor Company
       WITH

PVR Limited
                                          Applicant/Transferee Company

                                 Through Mr. Deepak Diwan, Advocate
                                 for the applicants

SUDERSHAN KUMAR MISRA, J.

1. This joint application has been filed under Sections 391 to 394 of

the Companies Act, 1956 by the applicant companies seeking directions

of this court to dispense with the requirement of convening the meetings

of their equity shareholders, secured and unsecured creditors to consider

and approve, with or without modification, the proposed Scheme of

Amalgamation of Bijli Holdings Private Limited (hereinafter referred to as

the transferor company) with PVR 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 was incorporated under the Companies

Act, 1956 on 23rd May, 2012 with the Registrar of Companies, NCT of

Delhi & Haryana at New Delhi.

4. The transferee company was originally incorporated under the

Companies Act, 1956 on 26th April, 1995 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi under the name and

style of Priya Village Roadshow Limited. The company changed its name

to PVR Limited and obtained the fresh certificate of incorporation on 28th

June, 2002.

5. The present authorized share capital of the transferor company is

Rs.2,00,00,000/- divided into 20,00,000 equity shares of Rs.10/- each.

The issued, subscribed and paid-up share capital of the company is

Rs.1,80,48,600/- divided into 18,04,860 equity shares of Rs.10/- each.

6. The present authorized share capital of the transferee company is

Rs.93,70,00,000/- divided into 9,37,00,000 equity shares of Rs.10/- each.

The issued, subscribed and paid-up share capital of the company is

Rs.46,54,86,880/- divided into 4,65,48,688 equity shares of Rs.10/- each.

7. 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, 2015, of the transferor and

transferee companies, along with the report of the auditors, have also

been filed.

8. 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 applicants that Bijli Holdings forms part of the promoter group of

PVR. It presently holds 1,00,31,805 equity shares in PVR constituting

21.55% of PVR's paid-up equity share capital. Pursuant to the proposed

amalgamation, individual promoters of PVR would directly hold shares in

PVR in the same proportion as they hold through the Bijli Holdings. It is

claimed that the proposed amalgamation will result in the promoter group

of PVR directly holding shares in PVR, which will lead not only to

simplification of the shareholding structure and reduction of shareholding

tiers but also demonstrate the promoter group's direct commitment to

and engagement with PVR.

9. 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 company in the following ratio:

"1,00,31,805 fully paid up equity shares of Rs.10/- each credited as fully paid up in the share capital of the transferee company to the members of the transferor company in the ratio of their equity shareholding in the transferor company."

10. It has been submitted by the applicants that no proceedings under

Sections 237, 243, 250, 250A and 251 of the Companies Act, 1956 or

under Sections 210, 214, 215, 216(1), (3) & (4), 217, 219, 220, 223,

224(1), (3) & (4) and 225 of the Companies Act, 2013 are pending

against the applicant companies.

11. The Board of Directors of the transferor company and the

transferee company in their separate meetings held on 14th August, 2015

and 4th September, 2015 respectively 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.

12. The transferor company has 02 equity shareholders. Both the

equity shareholders 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 to consider and, if thought

fit, approve, with or without modification, the proposed Scheme of

Amalgamation is dispensed with. There is no secured or unsecured

creditor of the transferor company, as on 9th November, 2015.

13. The transferee company has 08 secured creditors. 06 out of 08

secured creditors, being 75% in number and 98.19% 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 secured creditors of the

transferee company to consider and, if thought fit, approve, with or

without modification, the proposed Scheme of Amalgamation is

dispensed with.

14. The transferee company is a listed company, whose shares are

listed at National Stock Exchange and Bombay Stock Exchange. The

company has 32,241 equity shareholders and 2138 unsecured creditors

to whom a sum of Rs.44,51,74,110/- was payable, as on 31st October,

2015. Their consents are not placed on record. Learned counsel for the

applicants seeks dispensation of the meetings of the equity shareholders

and unsecured creditors on the ground that there will be no change in the

promoter shareholding of the transferee company and the promoters

would continue to hold the same percentage of shares in the transferee

company post amalgamation of the transferor company and, hence,

there will be no change in the control and management of the transferee

company, therefore, the rights of the shareholders including the public

shareholders of the transferee company will not be affected in any

manner whatsoever by the Scheme. Learned counsel has further

submitted that the net worth of the transferee company shall remain

unaffected pursuant to the merger, therefore, the rights of the

shareholders and creditors of the company, will not be adversely

affected. In support of his submission, learned counsel has placed on

record a certificate dated 25th November, 2015 from Narender Singh &

Co., Chartered Accountants certifying that, post amalgamation, the net

worth of the transferee company will remain the same. I do not find the

grounds given by learned counsel for the applicants sufficient to justify

dispensation of the meetings of the equity shareholders and unsecured

creditors of the transferee company. Any change in the capital structure

or the holding pattern or a corporate entity must happen with the consent

of the stakeholders, even though their rights may not be directly affected.

Under the given circumstances, the transferee company is directed to

convene and hold the meetings of its equity shareholders and unsecured

creditors to seek their approval to the proposed Scheme of

Amalgamation.

15. The meeting of the equity shareholders of the transferee company

shall be held on 27th February, 2016 at 10:30 a.m. at Mapple Emerald

Rajokri, NH-8, New Delhi. Ms. Manisha Tyagi, Advocate, (Mobile No.

9811007270) is appointed as the Chairperson and Mr. Ashutosh Gupta,

Advocate, (Mobile No. 9871433339) is appointed as the Alternate

Chairperson to conduct the said meeting. The Quorum of the meeting of

the equity shareholders of the transferee company shall be 200 in

number and more than 25% in value of the total equity share capital.

16. The meeting of the unsecured creditors of the transferee company

shall be held on 27th February, 2016 at 01:30 p.m. at Mapple Emerald

Rajokri, NH-8, New Delhi. Mr. N. K. Tyagi, Advocate, (Mobile No.

9871402101) is appointed as the Chairperson and Mr. Vikas Nautiyal,

Advocate, (Mobile No. 8860176904) is appointed as the Alternate

Chairperson to conduct the said meeting. The Quorum of the meeting of

the unsecured creditors of the transferee company shall be 100 in

number and more than 25% in value of the total unsecured debt.

17. 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 office of the applicant company at least 48 hours

before the meetings. The Chairpersons and Alternate Chairpersons shall

ensure that the proxy registers are properly maintained.

18. The Chairpersons and Alternate Chairpersons shall ensure that

notices for convening the aforesaid meetings of the equity shareholders

and unsecured creditors 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 equity shareholders and

unsecured creditors 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 meetings shall also be

published in the Delhi editions of the newspapers "Business Standard"

(English) and "Jansatta" (Hindi) in terms of the Companies (Court) Rules,

1959 at least 21 days before the date appointed for the meetings.

19. The Chairpersons and Alternate Chairpersons will be at liberty to

issue suitable directions to the management of the applicant company so

that the aforesaid meetings of the equity shareholders and unsecured

creditors of the transferee company is conducted in a just, free and fair

manner.

20. 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.

21. The application stands allowed in the aforesaid terms.

Dasti

SUDERSHAN KUMAR MISRA, J.

December 23, 2015