Ahipl Management Consulting ... vs ...
2015 Latest Caselaw 5331 Del

                    IN THE HIGH COURT OF DELHI
             COMPANY APPLICATION (MAIN) NO. 128/2015

                                           Reserved on 15th 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 394A of the
Companies Act, 1956 read with Rule 9 of the
Companies (Court) Rules, 1959

Scheme of Amalgamation and Arrangement between:

AHIPL Management Consulting Private Limited
                                       Applicant/Transferor Company
     AND

Fabindia Overseas Private Limited
                                          Applicant/Transferee Company

                               Through Mr. Karan Mehra, Mr.
                               Dipankar Vig and Mr. Kunal Juneja,
                               Advocates for the applicants

SUDERSHAN KUMAR MISRA, J.

1. This joint application has been filed under Sections 391 to 394A of

the Companies Act, 1956 read with Rule 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 their

equity shareholders and secured creditors and the unsecured creditors of

the transferor company and for convening a meeting of the unsecured

creditors of the transferee company to consider and approve, with or

without modification, the proposed Scheme of Amalgamation and

Arrangement between AHIPL Management Consulting Private Limited

(hereinafter referred to as the transferor company) and Fabindia

Overseas 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 was originally incorporated under the

Companies Act, 1956 on 20th May, 2011 with the Registrar of

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

style of Fabindia Franchise & Consulting Private Limited. The company

changed its name to Artisans Holdings and Investment Private Limited

and obtained the fresh certificate of incorporation on 25th November,

2011. The company again changed its name to AHIPL Management

Consulting Private Limited and obtained the fresh certificate of

incorporation on 11th November, 2013.

4. The transferee company was incorporated under the Companies

Act, 1956 on 14th December, 1976 with the Registrar of Companies, NCT

of Delhi & Haryana at New Delhi.

5. The present authorized share capital of the transferor company is

Rs.12,50,00,000/- divided into 1,25,00,000 equity shares of Rs.10/- each.

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

company is Rs.12,50,00,000/- divided into 1,25,00,000 equity shares of

Rs.10/- each.

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

Rs.2,50,00,000/- divided into 25,00,000 equity shares of Rs.10/- each.

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

company is Rs.2,36,51,700/- divided into 23,65,170 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, 2015 and 31st March, 2014 of

the transferor and transferee companies respectively, along with the

report of the auditors, have also been filed.

8. A copy of the Scheme of Amalgamation and 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 is claimed that the proposed amalgamation will provide better

financial and growth prospects through consolidation of resource base

and improvement in generation, mobilization and utilization of physical

resources, financial resources, human resources, knowledge, information

and other important tangible and intangible resources. It is further

claimed that the proposed amalgamation will reduce managerial

overlaps, which are necessarily involved in running multiple entities.

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

provides that the transferee company shall issue and allot equity shares

to the shareholders of the transferor company in the following ratio:

"01 equity share of Rs.10/- each of the transferee company for every 100 equity shares of Rs.10/- each held by the shareholders in the transferor company."

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 29th April, 2015 have unanimously

approved the proposed Scheme of Amalgamation and 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.

12. The transferor company has 92 equity shareholders. 87 out of 92

equity shareholders, being 94.56% in number and 98.95% in value, have

given their consents/no objections in writing to the proposed Scheme of

Amalgamation and 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 to consider and, if thought fit,

approve, with or without modification, the proposed Scheme of

Amalgamation and Arrangement is dispensed with. There is no secured

or unsecured creditor of the transferor company, as on 4th July, 2015.

13. The transferee company has 406 equity shareholders. 324 out of

406 equity shareholders, being 79.80% in number and 99.56% in value,

have given their consents/no objections in writing to the proposed

Scheme of Amalgamation and 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 of the transferee company to

consider and, if thought fit, approve, with or without modification, the

proposed Scheme of Amalgamation and Arrangement is dispensed with.

There is no secured creditor of the transferee company, as on 31st

March, 2015.

14. The transferee company has 6200 unsecured creditors and a

direction is sought to convene and hold their meeting to seek their

approval to the proposed Scheme of Amalgamation and Arrangement.

Considering the facts and circumstances aforesaid, the meeting of the

unsecured creditors of the transferee company shall be held on 3rd

September, 2015 at 11:00 a.m. at PHD Chamber of Commerce and

Industry, 4/2, Siri Institutional Area, August Kranti Marg, New Delhi -

110016. Ms. Anita Sahni, Advocate, (Mobile No. 9810113256) is

appointed as the Chairperson and Mr. Shekhar Kumar, Advocate,

(Mobile No. 9871008884) 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 500 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 transferee company 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 transferee company, along with copies of the Scheme of

Amalgamation and Arrangement and the statement under Section 393 of

the Companies Act, 1956, shall be sent to the 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 meeting shall also be published in the Delhi editions of the

newspapers "Business Standard" (English) and (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 transferee company

so that the aforesaid meeting of the unsecured creditors of the transferee

company 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.

July 27, 2015