Ubico Networks Private Limited vs ...
2015 Latest Caselaw 5248 Del

                  IN THE HIGH COURT OF DELHI
             COMPANY APPLICATION (MAIN) NO. 116/2015
                                            Reserved on 6th July, 2015
                               Date of pronouncement: 22nd July, 2015
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):

And

Application under Sections 390 & 391 of the
Companies Act, 1956 read with Rules 6 & 9 of
the Companies (Court) Rules, 1959

Scheme of Amalgamation of:

Ubico Networks Private Limited
                                    Applicant/Transferor Company No. 1
Spectranet IT Services Private Limited
                                     Applicant/Transferor Company No. 2
      WITH
Citycom Networks Private Limited
                                          Applicant/Transferee Company

                               Through Mr. P. Nagesh, Advocate for
                               the applicants

SUDERSHAN KUMAR MISRA, J.

1. This joint application has been filed under Sections 390 & 391 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 and transferee companies,

debenture holder of the transferee company and the secured creditors of

the transferor company no. 2 and the transferee company and for

convening of separate meetings of the secured and unsecured creditors

of the transferor company no. 1 and the unsecured creditors of the

transferor company no. 2 and the transferee company to consider and

approve, with or without modification, the proposed Scheme of

Amalgamation of Ubico Networks Private Limited (hereinafter referred to

as the transferor company no. 1) and Spectranet IT Services Private

Limited (hereinafter referred to as the transferor company no. 2) with

Citycom Networks 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 incorporated under the

Companies Act, 1956 on 18th May, 2007 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

4. The transferor company no. 2 was incorporated under the

Companies Act, 1956 on 25th July, 2012 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

5. The transferee company was originally incorporated under the

Companies Act, 1956 on 9th May, 2008 with the Registrar of Companies,

NCT of Delhi & Haryana at New Delhi under the name and style of

Citicom Networks Private Limited. The company changed its name to

Citycom Networks Private Limited and obtained the fresh certificate of

incorporation on 25th July, 2008.

6. The present authorized share capital of the transferor company

no.1 is Rs.20,00,00,000/- divided into 2,00,00,000 equity shares of

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

company is Rs.18,32,80,000/- divided into 1,83,28,000 equity shares of

Rs.10/- each.

7. The present authorized share capital of the transferor company

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

The 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.

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

Rs.30,00,00,000/- divided into 3,00,00,000 equity shares of Rs.10/- each.

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

Rs.23,95,20,000/- divided into 2,39,52,000 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, along with the reports of

the auditors, and the provisional balance sheets, as on 15th March, 2015,

of the transferor and transferee companies 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 submitted

by the applicants that the Scheme has been envisaged to create a single

robust entity which would carry on businesses that are integrated and

complementary in nature. It is claimed that the proposed amalgamation

would result in strengthened leadership in the industry in terms of asset

base, revenue, and market share of the combined entity. It is further

claimed that the amalgamation would help the management to achieve

greater integration and better financial strength which would result in

improving the competitive position of the combined entity

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:

"27 equity shares of Rs.10/- each of the transferee company, credited as fully paid up, for every 100 equity shares of Rs.10/- each fully paid up held in transferor company no. 1."

"151 equity shares of Rs.10/- each of the transferee company, credited as fully paid up, for every 01 equity share of Rs.10/- each fully paid up held in 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 19th March, 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.

14. The transferor company no. 1 has 03 equity shareholders. All 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 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 02 equity shareholders. Both the

equity shares 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. There is no secured creditor of the

transferor company no. 2, as on 15th March, 2015.

16. The transferee company has 02 equity shareholders and 01

debenture holder. Both the equity shareholders and the only debenture

holder 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 debenture holder of 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 transferee company, as on 15th March, 2015.

17. 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 shall be held on 21st August, 2015 at 12:00

noon at Lecture Room - II (Basement), India International Centre (IIC),

40 Max Mueller Marg, New Delhi - 110003. Mr. R. P. Jain, Advocate,

(Mobile No. 9910390950) is appointed as the Chairperson and Ms.Tanya

Khanna, Advocate, (Mobile No. 9650313588) 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

01 in number.

18. The transferor company no. 1 has 107 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 shall be held on 21st August,

2015 at 10:00 a.m. at Lecture Room - II (Basement), India International

Centre (IIC), 40 Max Mueller Marg, New Delhi - 110003. Mr. Rajeev

Kumar, Advocate, (Mobile No. 9810466870) is appointed as the

Chairperson and Ms. Shrishti Sharma, Advocate, (Mobile No.

9582249534) 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 25 in number and more than 25%

in value of the total unsecured debt.

19. The transferor company no. 2 has 10 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. 2 shall be held on 21st August,

2015 at 4:30 p.m. at Lecture Room - II (Basement), India International

Centre (IIC), 40 Max Mueller Marg, New Delhi - 110003. Mr. Rajeev

Sharma, Advocate, (Mobile No. 9810104886) is appointed as the

Chairperson and Mr. Sameer Sharma, Advocate, (Mobile No.

9213857751) 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. 2 shall be 3 in number and more than 25% in

value of the total unsecured debt.

20. The transferee company has 252 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 transferee company shall be held on 21st August, 2015 at

2:30 p.m. at Lecture Room - II (Basement), India International Centre

(IIC), 40 Max Mueller Marg, New Delhi - 110003. Mr. Rajeev Bansal,

Advocate, (Mobile No. 9810114141) is appointed as the Chairperson and

Mr. Ranjan Roy, Advocate, (Mobile No. 9810157399) 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 50

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

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 meeting. 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 unsecured

creditors of the transferor company no. 2 and 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

unsecured creditors of the transferor company no. 2 and 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 "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 meetings.

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 unsecured creditors of the transferor

company no. 2 and 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.

July 22, 2015