Delhi High Court
Felix Software Solutions Private ... vs ... on 27 July, 2015
Author: Sudershan Kumar Misra
IN THE HIGH COURT OF DELHI
COMPANY APPLICATION (MAIN) NO. 103/2015
Reserved on 2nd July, 2015
Date of pronouncement: 27th 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 read with Rules 6 and 9
of the Companies (Court) Rules, 1959
Scheme of Amalgamation of:
Felix Software Solutions Private Limited
Applicant/Transferor Company No. 1
Genpact India
Applicant/Transferor Company No. 2
Genpact Infrastructure (Bhubaneswar) Private Limited
Applicant/Transferor Company No. 3
Genpact India Business Processing Private Limited
Applicant/Transferor Company No. 4
Genpact Infrastructure (Jaipur) Private Limited
Applicant/Transferor Company No. 5
NGEN Media Services Private Limited
Applicant/Transferor Company No. 6
Pharmalink Consulting Operations Private Limited
Applicant/Transferor Company No. 7
WITH
Empower Research Knowledge Services Private Limited
Non-Applicant/Transferee Company
Through Mr. Mahesh Aggarwal with
Mr. Rajeev Kumar, Advocates for the
applicants
CA (M) 103/ 2015 Page 1 of 14
SUDERSHAN KUMAR MISRA, J.
1. This joint application has been filed under Sections 391 and 394 of
the Companies Act, 1956 read with Rules 6 & 9 of the Companies
(Court) Rules, 1959 by the applicant/transferor companies seeking
directions of this court to dispense with the requirement of convening the
meetings of their equity shareholders, secured and unsecured creditors
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 Felix
Software Solutions Private Limited (hereinafter referred to as the
transferor company no. 1); Genpact India (hereinafter referred to as the
transferor company no. 2); Genpact Infrastructure (Bhubaneswar) Private
Limited (hereinafter referred to as the transferor company no. 3);
Genpact India Business Processing Private Limited (hereinafter referred
to as the transferor company no. 4); Genpact Infrastructure (Jaipur)
Private Limited (hereinafter referred to as the transferor company no. 5);
NGEN Media Services Private Limited (hereinafter referred to as the
transferor company no. 6) and Pharmalink Consulting Operations Private
Limited (hereinafter referred to as the transferor company no. 7) with
Empower Research Knowledge Services Private Limited (hereinafter
referred to as the transferee company).
2. The registered offices of the transferor companies are situated at
New Delhi, within the jurisdiction of this Court. However, the registered
office of the transferee company is situated at Telangana, outside the
jurisdiction of this Court. Learned counsel for the applicant submitted that
a separate application will be filed by the transferee company in the court
of competent jurisdiction for sanction of the Scheme of Amalgamation in
respect of the transferee company.
3. The transferor company no. 1 was originally incorporated under
the Companies Act, 1956 on 17th February, 2007 with the Registrar of
Companies, Andhra Pradesh. The company shifted its registered office
from the state of Andhra Pradesh to Delhi and obtained a certificate in
this regard from the Registrar of Companies, NCT of Delhi & Haryana at
New Delhi on 28th August, 2014.
4. The transferor company no. 2 was originally incorporated under
the Companies Act, 1956 on 30th October, 1996 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of GE Capital International Services (Private Company with limited
liability). The word 'Private' was deleted from the name of the company
w.e.f. 01.04.2000. The company has been converted into a private
company w.e.f. 08.04.2003. The company changed its name to Genpact
India and obtained the fresh certificate of incorporation on 6th June, 2006.
5. The transferor company no. 3 was originally incorporated under
the Companies Act, 1956 on 23rd August, 2006 with the Registrar of
Companies, Rajasthan at Jaipur under the name and style of Genpact
Infrastructure (Bhubneshwar) Private Limited. The company shifted its
registered office from the state of Rajasthan to Delhi and obtained a
certificate in this regard from the Registrar of Companies, NCT of Delhi &
Haryana at New Delhi on 27th April, 2010. Thereafter, the company
changed its name to Genpact Infrastructure (Bhubaneswar) Private
Limited and obtained the fresh certificate of incorporation on 9th April,
2008.
6. The transferor company no. 4 was originally incorporated under
the Companies Act, 1956 on 24th August, 2006 with the Registrar of
Companies, Rajasthan at Jaipur. The company shifted its registered
office from the state of Rajasthan to Delhi and obtained a certificate in
this regard from the Registrar of Companies, NCT of Delhi & Haryana at
New Delhi on 27th April, 2010.
7. The transferor company no. 5 was originally incorporated under
the Companies Act, 1956 on 24th August, 2006 with the Registrar of
Companies, Rajasthan at Jaipur. The company shifted its registered
office from the state of Rajasthan to Delhi and obtained a certificate in
this regard from the Registrar of Companies, NCT of Delhi & Haryana at
New Delhi on 27th April, 2010.
8. The transferor company no. 6 was incorporated under the
Companies Act, 1956 on 29th August, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
9. The transferor company no. 7 was originally incorporated under
the Companies Act, 1956 on 3rd April, 2012 with the Registrar of
Companies, Maharashtra at Mumbai. The company shifted its registered
office from the state of Maharashtra to Delhi and obtained a certificate in
this regard from the Registrar of Companies, NCT of Delhi & Haryana at
New Delhi on 12th May, 2015.
10. The present authorized share capital of the transferor company
no.1 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.
11. The present authorized share capital of the transferor company
no.2 is Rs.25,00,00,000/- divided into 2,50,00,000 equity shares of
Rs.10/- each. The present issued, subscribed and paid-up share capital
of the company is Rs.1,56,87,000/- divided into 15,68,700 equity shares
of Rs.10/- each.
12. The present authorized share capital of the transferor company
no.3 is Rs.5,00,00,000/- divided into 50,00,000 equity shares of Rs.10/-
each. The present issued, subscribed and paid-up share capital of the
company is Rs.10,00,000/- divided into 1,00,000 equity shares of Rs.10/-
each.
13. The present authorized share capital of the transferor company
no.4 is Rs.5,00,00,000/- divided into 50,00,000 equity shares of Rs.10/-
each. The present issued, subscribed and paid-up share capital of the
company is Rs.10,00,000/- divided into 1,00,000 equity shares of Rs.10/-
each.
14. The present authorized share capital of the transferor company
no.5 is Rs.5,00,00,000/- divided into 50,00,000 equity shares of Rs.10/-
each. The present issued, subscribed and paid-up share capital of the
company is Rs.10,00,000/- divided into 1,00,000 equity shares of Rs.10/-
each.
15. The present authorized share capital of the transferor company
no.6 is Rs.20,00,00,000/- divided into 2,00,00,000 equity shares of
Rs.10/- each. The present issued, subscribed and paid-up share capital
of the company is Rs.17,00,00,000/- divided into 1,70,00,000 equity
shares of Rs.10/- each.
16. The present authorized share capital of the transferor company
no.7 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.
17. 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 transferor and transferee companies, as on
31st March, 2015, have also been filed.
18. 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
that the proposed amalgamation will provide an opportunity to better
leverage the consolidated assets and capital base, build a stronger and
sustainable business, and improve the potential for further growth and
expansion of the business. It is further claimed that consolidation of
entities in a single platform will provide operational synergies, which in
turn eliminate inefficiencies and streamline corporate structures and cash
flow.
19. So far as the share exchange ratio is concerned, the Scheme
provides that the entire share capital of the transferor companies no. 2, 3,
4, 5, 6 & 7 are held by the transferee company, therefore, no shares shall
be allotted by the transferee company. Further, since transferor company
no. 1 is a wholly owned subsidiary of the transferor company no. 2 which
shall get merged into the transferee company, therefore, no shares shall
be issued pursuant to amalgamation of transferor company no. 1 into the
transferee company.
20. 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.
21. The Board of Directors of the transferor companies no. 1, 2, 3, 4,
5, 6 & 7 and the transferee company in their separate meetings held on
20th April, 2015, 22nd April, 2015, 23rd April, 2015, 23rd April, 2015, 23rd
April, 2015, 20th April, 2015, 23rd April, 2015 and 23rd April, 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.
22. The transferor company no. 1 has 02 equity shareholders and 02
unsecured creditors. Both the equity shareholders and both the
unsecured creditors 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 creditors 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. There is no
secured creditor of the transferor company no. 1, as on 31st March, 2015.
23. The transferor company no. 2 has 02 equity shareholders and 02
secured creditors. Both the equity shareholders and both the secured
creditors 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 secured creditors 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.
24. The transferor company no. 3 has 02 equity shareholders and 01
unsecured creditor. Both the equity shareholders and the only 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 transferor company no. 3 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. 3, as on 31st March, 2015.
25. The transferor company no. 4 has 02 equity shareholders and 01
unsecured creditor. Both the equity shareholders and the only 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 transferor company no. 4 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. 4, as on 31st March, 2015.
26. The transferor company no. 5 has 02 equity shareholders and 01
unsecured creditor. Both the equity shareholders and the only 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 transferor company no. 5 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. 5, as on 31st March, 2015.
27. The transferor company no. 6 has 02 equity shareholders and 12
unsecured creditors. Both the equity shareholders and all the unsecured
creditors 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 creditors of the transferor company no. 6 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. 6, as on 31st March, 2015.
28. The transferor company no. 7 has 02 equity shareholders and 11
unsecured creditors. Both the equity shareholders and all the unsecured
creditors 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 creditors of the transferor company no. 7 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. 7, as on 31st March, 2015.
29. The transferor company no. 2 has 366 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 5th September,
2015 at 11:00 a.m. at the registered office of the company at Genpact
India, Second Floor, Delhi Information Technology Park, Shastri Park,
New Delhi-110053. Mr. Y. P. Singh, Advocate, (Mobile No. 9953711028)
is appointed as the Chairperson and Ms. Nidhi Tewari, Advocate, (Mobile
No. 9910421795) 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 50 in number and more than
25% in value of the total unsecured debt.
30. 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 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.
31. The Chairperson and Alternate Chairperson shall ensure that
notices for convening the aforesaid meeting of the unsecured creditors of
the 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 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 "Business Standard" (English) and "Jansatta" (Hindi)
editions in terms of the Companies (Court) Rules, 1959 at least 21 days
before the date appointed for the meeting.
32. The Chairperson and Alternate Chairperson will be at liberty to
issue suitable directions to the management of the transferor company
no. 2 so that the aforesaid meeting of the unsecured creditors of the
transferor company no. 2 is conducted in a just, free and fair manner.
33. 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.
34. The application stands allowed in the aforesaid terms.
Dasti
SUDERSHAN KUMAR MISRA, J.
July 27, 2015
