Ad2C Holdings Private Limited vs ...
2015 Latest Caselaw 9590 Del

                   IN THE HIGH COURT OF DELHI
              COMPANY APPLICATION (MAIN) NO. 176/2015

                                      Reserved on 14th 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 Section 391 of the
Companies Act, 1956 read with Rules 6 and 9
of the Companies (Court) Rules, 1959

Scheme of Amalgamation of:

AD2C Holdings Private Limited
                                     Applicant/Transferor Company No. 1

Appstudioz Technologies Private Limited
                                   Applicant/Transferor Company No. 2

AD2C (India) Private Limited
                                Non-Applicant/Transferor Company No. 3
       WITH

Affle (India) Private Limited
                                     Non-Applicant/Transferee Company

                                Through Mr. Samaksh Goyal, Advocate
                                for the applicant no. 1
                                Ms. Liza M. Baruah, Advocate for
                                applicant no. 2

SUDERSHAN KUMAR MISRA, J.

1. This joint application has been filed under Section 391 of the

Companies Act, 1956 read with Rules 6 & 9 of the Companies (Court)

Rules, 1959 by the applicant/transferor company nos. 1 & 2 seeking

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

meetings of the equity shareholders, secured and unsecured creditors of

applicant/transferor company no. 1 and equity shareholders and secured

creditors of applicant/transferor company no. 2 and for convening a

meeting of the unsecured creditors of the applicant/transferor company

no. 2 to consider and approve, with or without modification, the proposed

Scheme of Amalgamation of AD2C Holdings Private Limited (hereinafter

referred to as the applicant/transferor company no. 1); Appstudioz

Technologies Private Limited (hereinafter referred to as the applicant/

transferor company no. 2) and AD2C (India) Private Limited (hereinafter

referred to as the transferor company no. 3) with Affle (India) Private

Limited Limited (hereinafter referred to as the transferee company).

2. The registered offices of the transferor company nos. 1 & 2 are

situated at New Delhi, within the jurisdiction of this Court. However, the

registered offices of the transferor company no. 3 and the transferee

company are situated at Gurgaon, Haryana and Mumbai, Maharashtra

respectively outside the jurisdiction of this Court. Learned counsel for the

applicants submitted that separate applications filed by the transferor

company no.3 and the transferee company in the courts of competent

jurisdiction for sanction of the Scheme of Amalgamation in respect of the

transferor company no. 3 and the transferee company have already been

approved by the respective High Courts.

3. The applicant/transferor company no. 1 was originally incorporated

under the Companies Act, 1956 on 18th November, 2009 with the

Registrar of Companies, NCT of Delhi & Haryana at New Delhi under the

name and style of AV Mobimasta Marketing Private Limited. The

company changed its name to AD2C Holdings Private Limited and

obtained the fresh certificate of incorporation on 4th December, 2012.

4. The applicant/transferor company no. 2 was incorporated under

the Companies Act, 1956 on 13th June, 2011 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

5. The present authorized share capital of the applicant/transferor

company no.1 is Rs.5,00,000/- divided into 50,000 equity shares of

Rs.10/- each. The present issued, subscribed and paid-up share capital

of the company is Rs.2,50,000/- divided into 25,000 equity shares of

Rs.10/- each.

6. The present authorized share capital of the applicant/transferor

company no.2 is Rs.1,00,000/- divided into 10,000 equity shares of

Rs.10/- each. The present issued, subscribed and paid-up share capital

of the company is Rs.1,00,000/- divided into 10,000 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, 2014, along with the reports of

the auditors, and the provisional accounts, as on 31st March, 2015 and

31st July, 2015, of the transferor and transferee companies, 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 claimed

by the applicants that the proposed amalgamation would have greater

efficiency in cash management, unfettered access to cash flow

generated by the combined businesses which can be deployed more

efficiently to fund organic and inorganic growth opportunities. It is further

claimed that by the proposed amalgamation benefit of operational

synergies to the combined entity in various operational areas can be put

to the best advantage of all the stakeholders. It is also claimed that the

merger will result in integration of human resources, finance, legal and

general management leading to an efficient organization capable of

responding swiftly to volatile and rapidly changing market scenario.

9. So far as the share exchange ratio is concerned, the Scheme

provides, 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:

"74 equity shares of Rs.10/- each fully paid up of the transferee company for every 21 equity shares of Rs.10/- each fully paid up held in the transferor company no. 1."

"586 equity shares of Rs.10/- each fully paid up of the transferee company for every 05 equity shares of Rs.10/- each fully paid up held in the transferor company no. 2."

"48 equity shares of Rs.10/- each fully paid up of the transferee company for every 17 equity shares of Rs.10/- each fully paid up held in the transferor company no. 3."

10. 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.

11. The Board of Directors of the transferor and transferee companies

in their separate meetings held on 13th May, 2015 and 5th August, 2015

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 applicant/transferor company no. 1 has 02 equity shareholders

and 01 unsecured creditor. Both the equity shareholders and the sole

unsecured creditor 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 meetings of the

equity shareholders and unsecured creditor of the applicant/transferor

company no. 1 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 no. 1,

as on 31st July, 2015.

13. The applicant/transferor company no. 2 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 applicant/

transferor company no. 2 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 no. 2, as on 31st July, 2015.

14. The applicant/transferor company no. 2 has 48 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 applicant/transferor company no. 2 shall be held on 9th

February, 2016 at 10:00 a.m. at India International Centre, 40, Max

Mueller Marg, New Delhi - 110003. Mr. Gaurav Kumar Sharma,

Advocate, (Mobile No. 9990116727) is appointed as the Chairperson and

Ms. Shruti Aggarwal, Advocate, (Mobile No. 9810844887) is appointed as

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

the meeting of the unsecured creditors of the applicant/transferor

company no. 2 shall be 10 in number and more than 25% in value of the

total unsecured debt.

15. In case the quorum as noted above for the above meeting is not

present at the meeting, then the meeting 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 meeting is

filed with the registered office of the applicant/transferor company no. 2 at

least 48 hours before the meeting. The Chairperson and Alternate

Chairperson shall ensure that the proxy register is properly maintained.

16. The Chairperson and Alternate Chairperson shall ensure that

notices for convening the aforesaid meeting of the unsecured creditors of

the applicant/transferor company no. 2, along with copies of the Scheme

of Amalgamation and the statement under Section 393 of the Companies

Act, 1956, shall be sent to the unsecured creditors of the applicant/

transferor company no. 2 by ordinary post at their registered or last

known addresses at least 21 days before the date appointed for the

meeting, in their presence or in the presence of their authorized

representatives. Notice of the meeting shall also be published in the Delhi

editions of the newspapers "Indian Express" (English) and "Jansatta"

(Hindi) editions in terms of the Companies (Court) Rules, 1959 at least 21

days before the date appointed for the meeting.

17. The Chairperson and Alternate Chairperson will be at liberty to

issue suitable directions to the management of the applicant/transferor

company no. 2 so that the aforesaid meeting of the unsecured creditors

of the applicant/transferor company no. 2 is conducted in a just, free and

fair manner.

18. The fee of the Chairperson and the Alternate Chairperson for the

aforesaid meeting shall be Rs.50,000/- each in addition to meeting their

incidental expenses. The Chairperson will file his report within two weeks

from the date of holding of the aforesaid meeting.

19. The application stands allowed in the aforesaid terms.

Dasti

SUDERSHAN KUMAR MISRA, J.

December 23, 2015