Delhi High Court
Mhaya Buildcon Private Limited vs ... on 27 July, 2015
Author: Sudershan Kumar Misra
IN THE HIGH COURT OF DELHI
COMPANY APPLICATION (MAIN) NO. 109/2015
Reserved on 6th 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 Section 391 of the
Companies Act, 1956
Scheme of Arrangement between:
Mhaya Buildcon Private Limited
Applicant/Transferor Company No. 1
DLF Buildcon Private Limited
Applicant/Transferor Company No. 2
DLF Telecom Limited
Applicant/Transferor Company No. 3
DLF Info City Developers (Chennai) Limited
Non-Applicant/Transferor Company No. 4
DLF Universal Limited
Non-Applicant/Transferor Company No. 5
AND
DLF Home Developers Limited
Applicant/Transferee Company
Through Mr. Karan Malhotra, Advocate
for the applicants
SUDERSHAN KUMAR MISRA, J.
1. This joint application has been filed under Section 391 of the
Companies Act, 1956 by the applicant/transferor companies no. 1 to 3
and the applicant/transferee company seeking directions of this court to
dispense with the requirement of convening the meetings of their equity
shareholders, preference shareholders, secured and unsecured creditors
and for convening of separate meetings of the secured and unsecured
creditors of the applicant/transferee company to consider and approve,
with or without modification, the proposed Scheme of Arrangement
between Mhaya Buildcon Private Limited (hereinafter referred to as the
transferor company no. 1); DLF Buildcon Private Limited (hereinafter
referred to as the transferor company no. 2); DLF Telecom Limited
(hereinafter referred to as the transferor company no. 3); DLF Info City
Developers (Chennai) Limited (hereinafter referred to as the transferor
company no. 4) and DLF Universal Limited (hereinafter referred to as the
transferor company no.5) and DLF Home Developers Limited (hereinafter
referred to as the transferee company).
2. The registered offices of the transferor companies no. 1 to 3 and
the transferee company are situated at New Delhi, within the jurisdiction
of this Court. However, the registered offices of the transferor companies
no. 4 & 5 are situated at Gurgaon, outside the jurisdiction of this Court.
Learned counsel for the applicants submitted that a separate application
has been filed by the transferor companies no. 4 & 5 in the court of
competent jurisdiction for sanction of the Scheme of Arrangement in their
respect which is still pending.
3. The transferor company no. 1 was incorporated under the
Companies Act, 1956 on 9th April, 2007 with the Registrar of Companies,
NCT of Delhi & Haryana at New Delhi.
4. The transferor company no. 2 was originally incorporated under
the Companies Act, 1956 on 30th November, 2007 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of DLF Limitless Developers Private Limited. The company changed
its name to DLF Buildcon Private Limited and obtained the fresh
certificate of incorporation on 22nd August, 2014.
5. The transferor company no. 3 was originally incorporated under
the Companies Act, 1956 on 10th March, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of Camila Builders & Constructions Private Limited. The company
changed its name to Bhubaneswar I.T. Park Developers Private Limited
and obtained the fresh certificate of incorporation on 31st March, 2007.
The company again changed its name to Bhubaneswar I. T. Park
Developers Limited and obtained the fresh certificate of incorporation on
8th May, 2007. The company finally changed its name to DLF Telecom
Limited and obtained the fresh certificate of incorporation on 8th
November, 2007.
6. The transferee company was originally incorporated under the
Companies Act, 1956 on 29th December, 1995 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of Uppal Hotels Private Limited. The word 'Private' was deleted
from the name of the company w.e.f. 05.05.2000. The company changed
its name to Uppal Hotels Limited and obtained the fresh certificate of
incorporation on 19th October, 2001. The company again changed its
name to DLF Home Developers Limited and obtained the fresh certificate
of incorporation on 19th June, 2004.
7. The present authorized share capital of the transferor company
no.1 is Rs.2,00,000/- divided into 20,000 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.
8. The present authorized share capital of the transferor company
no.2 is Rs.25,00,00,00,000/- divided into 2,50,00,00,000 equity shares of
Rs.10/- each. The present issued, subscribed and paid-up share capital
of the company is Rs.4,02,51,00,000/- divided into 40,25,10,000 equity
shares of Rs.10/- each.
9. The present authorized share capital of the transferor company
no.3 is Rs.12,00,00,000/- divided into 1,20,00,000 equity shares of
Rs.10/- each. The present issued, subscribed and paid-up share capital
of the company is Rs.11,15,00,000/- divided into 1,11,50,000 equity
shares of Rs.10/- each.
10. The present authorized share capital of the transferee company is
Rs.77,40,55,20,000/- divided into 3,34,94,52,000 equity shares of Rs.10/-
each aggregating to Rs.33,49,45,20,000/-; 34,00,00,000 0.01%
redeemable preference shares of Rs.100/- each aggregating to
Rs.34,00,00,00,000/-; 80,000 10% non-cumulative redeemable
preference shares of Rs.100/- each aggregating to Rs.80,00,000/-;
15,000 6% redeemable preference shares of Rs.100/- each aggregating
to Rs.15,00,000/-; 9,90,00,000 preference shares of Rs.100/- each
aggregating to Rs.9,90,00,00,000/-; and 15,000 6% non-cumulative
redeemable preference shares of Rs.100/- each aggregating to
Rs.15,00,000/-. The present issued, subscribed and paid-up share
capital of the company is Rs.9,26,65,38,390/- divided into 4,12,13,839
equity shares of Rs.10/- each aggregating to Rs.41,21,38,390/-; and
8,85,44,000 0.01% redeemable preference shares of Rs.100/- each
aggregating to Rs.8,85,44,00,000/-.
11. 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, have also
been filed.
12. A copy of the Scheme of Arrangement 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 has been
submitted by the applicants that all the companies involved in the present
scheme are directly/indirectly subsidiaries of DLF Limited, which is the
ultimate holding/parent company. It has been further submitted that the
present Scheme envisaged the amalgamation of the transferor
companies no. 1 to 4 and demerger of the Real Estate Undertaking of the
transferor company no. 5 into the transferee company. It is claimed that
the proposed Scheme would enable the companies to harness and
optimize the resources in the best interest of the respective stakeholders.
It is further claimed that the proposed arrangement will result in better,
efficient and economical management, achieve cost savings, pooling of
resources, reduction of corporate tiers, rationalization of administrative
expenses/services, control and running of businesses and further
development and growth of the business of the companies.
13. So far as the share exchange ratio is concerned, the Scheme
provides that the transferor company no. 1 is a wholly owned subsidiary
of the transferee company and, therefore, upon the Scheme becoming
effective, the entire share capital held by the transferee company and/or
its nominee shall be extinguished and cancelled and no shares shall be
issued by the transferee company. It has been further provided that the
transferee company shall issue and allot equity shares to the
shareholders of the transferor companies no. 2 & 3 in the following ratio:
"the transferee company shall allot 10,44,513 equity shares
of Rs.10/- each fully paid up to DLF Limited, whose name
appears in the register of members of the transferor
company no. 2."
"the transferee company shall allot 59,653 equity shares of
Rs.10/- each fully paid up to DLF Limited, whose name
appears in the register of members of the transferor
company no. 3."
14. It has been submitted by the applicants that no proceedings under
Sections 235 to 251 of the Companies Act, 1956 and/or under Section
206 to 229 of the Companies Act, 2013, to the extent applicable, are
pending against the applicant companies.
15. The Board of Directors of the transferor companies no. 1, 2, 3 & 5
and the transferee company and the Board of Directors of the transferor
company no. 4 in their separate meetings held on 31st March, 2015 and
27th March, 2015 respectively have unanimously approved the proposed
Scheme of Arrangement. Copies of the Resolutions passed at the
meetings of the Board of Directors of the transferor and transferee
companies have been placed on record.
16. The transferor company no. 1 has 07 equity shareholders and 03
unsecured creditors. All the equity shareholders and all the unsecured
creditors have given their consents/no objections in writing to the
proposed Scheme of Arrangement. 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 Arrangement is dispensed with. There is no
secured creditor of the transferor company no. 1, as on 31st December,
2014.
17. The transferor company no. 2 has 07 equity shareholders. All the
equity shareholders have given their consents/no objections in writing to
the proposed Scheme of Arrangement. 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 Arrangement is dispensed with. There is no secured or unsecured
creditors of the transferor company no. 2, as on 31st December, 2014.
18. The transferor company no. 3 has 07 equity shareholders and 01
unsecured creditor. All the equity shareholders and the only unsecured
creditor have given their consents/no objections in writing to the
proposed Scheme of Arrangement. 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 Arrangement is dispensed with. There is no
secured creditor of the transferor company no. 3, as on 31st December,
2014.
19. The transferee company has 08 equity shareholders and 01
preference shareholder. All the equity shareholders and the only
preference shareholder have given their consents/no objections in writing
to the proposed Scheme of Arrangement. 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 preference shareholders of the transferee
company to consider and, if thought fit, approve, with or without
modification, the proposed Scheme of Arrangement is dispensed with.
20. The transferee company has 6 secured creditors and a direction is
sought to convene and hold their meeting to seek their approval to the
proposed Scheme of Arrangement. Considering the facts and
circumstances aforesaid, the meeting of the secured creditors of the
transferee company shall be held on 5th September, 2015 at 10:00 a.m.
at Niryat Bhawan, Rao Tula Ram Marg, Opposite Army Hospital
Research and Referral, New Delhi - 110057. Ms. Madhurima Mridul,
Advocate, (Mobile No. 9810175151) is appointed as the Chairperson and
Mr. Sunil Sharma, Advocate, (Mobile No. 9811383958) is appointed as
the Alternate Chairperson to conduct the said meeting. The Quorum of
the meeting of the secured creditors of the transferee company shall be
02 in number and more than 25% in value of the total secured debt.
21. The transferee company has 9003 unsecured creditors and a
direction is sought to convene and hold their meeting to seek their
approval to the proposed Scheme of Arrangement. Considering the facts
and circumstances aforesaid, the meeting of the unsecured creditors of
the transferee company shall be held on 5th September, 2015 at 11:00
a.m. at Niryat Bhawan, Rao Tula Ram Marg, Opposite Army Hospital
Research and Referral, New Delhi - 110057. Mr. Yogesh Jagia,
Advocate, (Mobile No. 9810043405) is appointed as the Chairperson and
Ms. Alka Srivastava, Advocate, (Mobile No. 9811950380) 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 200 in number and more than 25% in value of the total unsecured
debt.
22. 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 transferee company at least 48 hours
before the meetings. The Chairpersons and Alternate Chairpersons shall
ensure that the proxy registers are properly maintained.
23. The Chairpersons and Alternate Chairpersons shall ensure that
notices for convening the aforesaid meetings of the secured and
unsecured creditors of the transferee company, along with copies of the
Scheme of Arrangement and the statement under Section 393 of the
Companies Act, 1956, shall be sent to the secured 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
meeting, 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.
24. The Chairpersons and Alternate Chairpersons will be at liberty to
issue suitable directions to the management of the transferee company
so that the aforesaid meetings of the secured and unsecured creditors of
the transferee company is conducted in a just, free and fair manner.
25. 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.
26. The application stands allowed in the aforesaid terms.
Dasti
SUDERSHAN KUMAR MISRA, J.
July 27, 2015
