Exlservice Sez Bpo Solutions ... vs ...
2015 Latest Caselaw 5254 Del

                    IN THE HIGH COURT OF DELHI
              COMPANY APPLICATION (MAIN) NO. 111/2015
                                            Reserved on 1st 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 391 to 394 of the
Companies Act, 1956

Scheme of Amalgamation of:

ExlService SEZ BPO Solutions Private Limited
                                  Applicant/Transferor Company No. 1

Exl Support Services Private Limited
                                       Applicant/Transferor Company No. 2
       WITH

Exl Service.com (India) Private Limited
                                            Applicant/Transferee Company

                               Through Mr. Dhritiman Bhattacharyya
                               with Mr.Piyush Sharma and Ms Deeti
                               Ojha, 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 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 ExlService SEZ BPO Solutions Private Limited

(hereinafter referred to as the transferor company no. 1) and Exl Support

Services Private Limited (hereinafter referred to as the transferor

company no. 2) with Exl Service.com (India) 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 15th January, 2009 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 March, 2004 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 21st May, 1999 with the Registrar of

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

style of EXL Services.com (India) Private Limited. The company changed

its name to exl Service.com (India) Private Limited and obtained the fresh

certificate of incorporation on 28th November, 2000.

6. The present authorized share capital of the transferor company

no.1 is Rs.15,00,00,000/- divided into 1,50,00,000 equity shares of

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

company is Rs.13,76,55,000/- divided into 1,37,65,500 equity shares of

Rs.10/- each.

7. The present authorized share capital of the transferor company

no.2 is Rs.10,00,000/- divided into 1,00,000 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.15,00,00,000/- divided into 1,50,00,000 equity shares of Rs.10/- each.

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

Rs.13,41,70,290/- divided into 1,34,17,029 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, and the

provisional accounts of the companies, as on 31st March, 2015, 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 affidavits. It is claimed

by the applicants that the proposed Scheme will result in focused

approach towards customers as collective services shall be rendered by

a single consolidated entity; reduction of operating/administrative costs,

thereby improving overall profitability; reduction in number of legal

entities and regulatory compliances thereof; and pooling of financial

resources in a single consolidated entity for effective treasury function

and centralized management of funds to supplement future growth

opportunities.

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

provides that ExlService Mauritius Limited is the parent company which

holds the entire paid-up share capital of the transferor company no. 1

(except one share only) and transferee company (except two shares

only) and that the transferor company no. 2 is a wholly owned subsidiary

of the transferee company and the Scheme does not envisage issuances

of any shares to the transferee company. It is further provided that a

lump sum consideration amounting to Rs.1,37,65,500/- has been fixed

for the transfer and vesting of assets and liabilities of the transferor

company no. 1 into the transferee company as a result of amalgamation,

which shall be discharged by the transferee company through issuances

of its 13,76,500 equity shares of Rs.10/- each, credited as fully paid up,

to ExlService Mauritius Limited.

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

Sections 235 to 251 of the Companies Act, 1956 or corresponding

provisions under the Companies Act, 2013 are pending against the

applicant companies.

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

in their separate meetings held on 2nd April, 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 02 equity shareholders and 01

secured creditor. Both the equity shareholders and the only secured

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 meeting of the equity

shareholders and secured creditor 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 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. 2 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 no. 2, as on 30th April, 2015.

16. The transferee company has 02 equity shareholders and 01

secured creditor. Both the equity shareholders and the only secured

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 meeting of the equity

shareholders and 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.

17. The transferor company no. 1 has 246 unsecured creditors

amounting to Rs.18,16,38,708/- whereas the transferee company has

552 unsecured creditors amounting to Rs.65,31,49,575/-. 43 out of 246

unsecured creditors, being 17.4% in number and 86.24% in value, of the

transferor company no. 1 and 48 out of 552 unsecured creditors, being

8.69% in number and 76.45% in value, of the transferee company 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.

18. In addition to the aforesaid consents of the unsecured creditors of

the transferor company no. 1 and the transferee company, the applicants

have placed on record an affidavit cum undertaking dated 14th July, 2015

of Mr. Vishal Chhibbar, Director of the applicant companies stating that

the transferee company has liquidity comprising of cash and bank

balances of Rs.67,83,62,559/- and liquid investments in mutual funds of

Rs.2,50,34,70,415/- totaling to Rs.3,18,18,32,974/- which is more than

sufficient to meet and discharge the entire liability towards all the

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

company amounting to Rs.83,47,88,283/-. The applicant companies have

also undertaken to duly pay and discharge the liabilities of the unsecured

creditors in normal course of their business. In view thereof, the

requirement of convening the meetings of the unsecured creditors of the

transferor company no. 1 and the transferee company to consider and, if

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

of Amalgamation is dispensed with.

19. The application stands allowed in the aforesaid terms.

Dasti

SUDERSHAN KUMAR MISRA, J.

July 22, 2015