Delhi High Court
M/S. Almondz Re-Insurance ... vs ... on 17 March, 2015
IN THE HIGH COURT OF DELHI
COMPANY APPLICATION (MAIN) NO. 27/2015
Reserved on 25th February, 2015
Date of pronouncement: 17th March, 2015
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):
And
Application under Sections 391 & 394 of the
Companies Act, 1956
Scheme of Amalgamation of:
M/s. Almondz Re-Insurance Brokers Private Limited
Applicant/Transferor Company
WITH
M/s. Almondz Insurance Brokers Private Limited
Applicant/Transferee Company
Through Mr. Satwinder Singh and
Mr.N.P.S. Chawla, Advocates for the
applicants
SUDERSHAN KUMAR MISRA, J.
1. This joint application has been filed under Sections 391 and 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 M/s. Almondz Re-Insurance Brokers Private Limited
(hereinafter referred to as the transferor company) with M/s. Almondz
Insurance Brokers 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 incorporated under the Companies
Act, 1956 on 27th December, 2006 with the Registrar of Companies, NCT
of Delhi & Haryana at New Delhi.
4. The transferee company was originally incorporated under the
Companies Act, 1956 on 27th March, 2003 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of ASL Insurance Brokers Private Limited. The company changed
its name to Almondz Insurance Brokers Private Limited and obtained the
fresh certificate of incorporation on 23rd January, 2007.
5. The present authorized share capital of the transferor company is
Rs.3,00,00,000/- divided into 30,00,000 equity shares of Rs.10/- each.
The present issued, subscribed and paid-up share capital of the
company is Rs.2,00,00,000/- divided into 20,00,000 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.1,80,00,000/- divided into 18,00,000 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, 2014, of the transferor and
transferee companies, along with the report of the auditors, have also
been filed.
8. 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
by the applicants that the proposed amalgamation will provide integration
of capabilities, streamlining of administration, effective management
system, greater financial strength, and operational flexibility of the
amalgamated entity, which would result in maximizing overall
shareholder value. It is further claimed that the Scheme will also provide
increased competitive size, scale, better leverages in operational
planning and process optimization and higher efficiency in use of
available resources and will build up a larger capital base for the future
growth and continuous development of the amalgamated entity,
establishing proper organization machinery and smooth process of
integration.
9. So far as the share exchange ratio is concerned, the Scheme
provides that, since the transferor company is a wholly owned subsidiary
of the transferee company, all the equity shares held by the transferee
company and its nominees in the transferor company shall be cancelled
and extinguished. Accordingly, there will be no issue and allotment of
equity shares of the transferee company to the members of the transferor
company upon coming into effect of this Scheme.
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 10th November, 2014 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.
12. The transferor company has 07 equity shareholders and 01
secured creditor. All 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 meetings of the equity
shareholders and secured creditor of the transferor company to consider
and, if thought fit, approve, with or without modification, the proposed
Scheme of Amalgamation is dispensed with.
13. As on 15th December, 2014, the transferor company has 28
unsecured creditors holding unsecured debt of Rs.18,73,56,949/-. The
applicants have placed on record a certificate issued by M/s. Pawan
Shubham & Co., Chartered Accountants certifying that out of 28
unsecured creditors, 17 unsecured creditors holding unsecured debt of
Rs.17,62,64,545/- have been paid off fully/partly by the company, as on
30th January, 2015. Learned counsel for the applicants has submitted
that the transferor company is a wholly owned subsidiary of the
transferee company and since it is an amalgamation of the wholly owned
subsidiary company with its holding company, therefore, rights of
unsecured creditors of the applicant companies will not be affected
adversely. He further submitted that the Scheme does not contemplate
any variation of the rights of the unsecured creditors, nor does it
contemplate extinction or reduction of liability to any creditor. Learned
counsel has also submitted that on amalgamation of the transferor
company with the transferee company, the post amalgamation net worth
of the transferee company will be Rs.22,19,15,399/- as compared to its
pre-amalgamation net worth of Rs.11,31,05,228/-. He has placed on
record a certificate issued by M/s. Pawan Shubham & Co., Chartered
Accountants, showing the pre and post amalgamation net worth of the
transferor and transferee companies. He, therefore, prays that the
requirement of convening and holding the meeting of the unsecured
creditors of the transferor company may kindly be dispensed with.
14. In support of his submissions, learned counsel placed reliance on
the judgment of this court in the matter of HCL Comnet Systems &
Services Limited & Anr. [CA (M) 187/2012]; and O.C. Denims and
Special Finishes Limited & Anr. [CA (M) 86/2013] wherein this court,
under similar circumstances, has dispensed with the requirement of
convening and holding the meetings of the creditors of the applicant
companies.
15. The unsecured creditors of the transferor company are running
creditors who are paid-off in the normal course of the business of the
company. A perusal of the audited balance sheet of the transferor
company, as on 31st March, 2014, reveals that the company has
reserves and surplus of Rs.10,88,10,171/-. As per the certificate issued
by M/s. Pawan Shubham & Co., Chartered Accountants, the post-
amalgamation net worth of the transferee company will enhance to
Rs.22,19,15,399/- as compared to its pre-amalgamation net worth of
Rs.11,31,05,228/-. In addition, the applicants have placed on record the
certificate issued by M/s. Pawan Shubham & Co., Chartered Accountant,
determining the liquidity position of the companies, which shows that the
liquid assets (including cash and bank balance) of the transferor
company, pre-amalgamation, are to the tune of Rs.37,18,61,504/-
whereas the liquid assets (including cash and bank balance) of the
transferee company, post-amalgamation, are to the tune of
Rs.41,31,76,317/-. Therefore, the rights of the unsecured creditors of the
transferor company are not likely to be affected and the transferee
company will be in a position to discharge all its liabilities, upon sanction
of the Scheme of Amalgamation. In view of the above and the settled law
on the subject, the requirement of convening and holding the meeting of
the unsecured creditors of the transferor company to consider and, if
thought fit, approve, with or without modification, the proposed Scheme
of Amalgamation is dispensed with.
16. The transferee company has 08 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 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 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 December, 2014.
17. The application stands allowed in the aforesaid terms.
Dasti
SUDERSHAN KUMAR MISRA, J.
March 17, 2015
