Delhi High Court
Golden Peakock Overseas Limited vs ... on 26 March, 2015
IN THE HIGH COURT OF DELHI
COMPANY APPLICATION (MAIN) NO. 20/2015
Reserved on 24th February, 2015
Date of pronouncement: 26th March, 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 & 9 of
the Companies (Court) Rules, 1959
Scheme of Demerger between:
Golden Peakock Overseas Limited
Applicant/Demerged Company No. 1
Indo-Dan Lampshades Private Limited
Applicant/Demerged Company No. 2
AND
GPL Exports Limited
Applicant/Resulting Company
Through Mr. Vivek Malik and Mr. Mukul
Thakur, 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 read with Rules 6 & 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, secured and unsecured creditors to consider and
approve, with or without modification, the proposed Scheme of Demerger
between Golden Peakock Overseas Limited (hereinafter referred to as
the demerged company no. 1); Indo-Dan Lampshades Private Limited
(hereinafter referred to as the demerged company no. 2) and GPL
Exports Limited (hereinafter referred to as the resulting company). In the
alternative, the applicants have prayed that if this court does not grant
exemption for holding any meeting as prayed for above, the meeting may
be directed to held at the registered office of the applicant companies.
2. The registered offices of the demerged and resulting companies
are situated at New Delhi, within the jurisdiction of this Court.
3. The demerged company no. 1 was originally incorporated under
the Companies Act, 1956 on 28th February, 1989 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of Golden Peakock Overseas Private Limited. The company
changed its name to Golden Peakock Overseas Limited and obtained the
fresh certificate of incorporation on 22nd July, 1996.
4. The demerged company no. 2 was incorporated under the
Companies Act, 1956 on 28th December, 1995 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
5. The resulting company was incorporated under the Companies
Act, 1956 on 10th January, 2003 with the Registrar of Companies, NCT of
Delhi & Haryana at New Delhi.
6. The authorized share capital of the demerged company no. 1, as
on 31st March, 2014, was Rs.3,00,00,000/- divided into 30,00,000 equity
shares of Rs.10/- each. The issued, subscribed and paid up capital of the
company was Rs.2,57,13,000/- divided into 25,71,300 equity shares of
Rs.10/- each.
7. The authorized share capital of the demerged company no. 2, as
on 31st March, 2014, was Rs.75,00,000/- divided into 7,50,000 equity
shares of Rs.10/- each. The issued, subscribed and paid up capital of the
company was Rs.45,76,000/- divided into 4,57,600 equity shares of
Rs.10/- each.
8. The authorized share capital of the resulting company, as on 31st
March, 2014, was Rs.10,00,000/- divided into 1,00,000 equity shares of
Rs.10/- each. The issued, subscribed and paid up capital of the company
was Rs.5,00,000/- divided into 50,000 equity shares of Rs.10/- each.
9. Copies of the Memorandum and Articles of Association of the
demerged and resulting companies have been filed on record. The
audited balance sheets, as on 31st March, 2014, of the demerged and
resulting companies, along with the report of the auditors, have also been
filed.
10. A copy of the Scheme of Demerger 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 submitted by the
applicants that as a measure of corporate restructuring, more efficient
use of existing resources, operation on a broader scale, increasing
efficiency in business operations, and to realize the potential for further
growth, Demerged Company No. 1 and Demerged Company No. 2
propose to separate their Manufacturing Divisions by demerging it to the
resulting company. It is claimed that the proposed demerger will enable
both the demerged companies to concentrate on their other businesses.
It is further claimed that the demerger will provide a specialized
manufacturing business to the resulting company, which in turn, shall be
able to chalk out growth plan thereby increasing consolidated profitability
of the company with benefits of synergies and economies of scale.
11. So far as the share exchange ratio is concerned, the Scheme
provides that upon coming into effect of this Scheme, the resulting
company shall issue and allot equity shares to the shareholders of the
demerged companies in the following ratio:
"01 equity share of Rs.10/- each of the transferee company,
credited as fully paid up, for every 89 fully paid up equity
shares of Rs.10/- each held by the shareholders in the
demerged company no. 1."
"01 equity share of Rs.10/- each of the transferee company,
credited as fully paid up, for every 17 fully paid up equity
shares of Rs.10/- each held by the shareholders in the
demerged company no. 2."
12. It has been submitted by the applicants that no proceedings under
Sections 235 to 251 of the Companies Act, 1956 have been instituted or
are pending against the applicant companies.
13. The Board of Directors of the demerged and resulting companies
in their separate meetings held on 16th August, 2014 have unanimously
approved the proposed Scheme of Demerger. Copies of the Resolutions
passed at the meetings of the Board of Directors of the demerged and
resulting companies have been placed on record.
14. The demerged company no. 1 has 09 equity shareholders, 01
secured creditor and 106 unsecured creditors. 08 out of 09 equity
shareholders holding 99% of the paid up capital, the only secured
creditor and 46 out of 106 unsecured creditors, being 43% in number and
83% in value, have given their consents/no objections in writing to the
proposed Scheme of Demerger. Their consents/no objections have been
placed on record. They have been examined and found in order. Prima
facie, it is noticed that the unsecured sundry creditors are having running
account with the company. In view thereof, the requirement of convening
the meetings of the equity shareholders, secured and unsecured
creditors of the demerged company no. 1 to consider and, if thought fit,
approve, with or without modification, the proposed Scheme of Demerger
is dispensed with.
15. The demerged company no. 2 has 04 equity shareholders and 03
secured creditors. All the equity shareholders and all the secured
creditors have given their consents/no objections in writing to the
proposed Scheme of Demerger. 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 demerged company no. 2 to
consider and, if thought fit, approve, with or without modification, the
proposed Scheme of Demerger is dispensed with.
16. The resulting company has 08 equity shareholders, 01 secured
creditor and 68 unsecured creditors. All the equity shareholders, the only
secured creditor and 26 out of 68 unsecured creditors, being 38% in
number and 80% in value, have given their consents/no objections in
writing to the proposed Scheme of Demerger. Their consents/no
objections have been placed on record. They have been examined and
found in order. Prima facie, it is noticed that the unsecured sundry
creditors are having running account with the company. In view thereof,
the requirement of convening the meetings of the equity shareholders,
secured and unsecured creditors of the resulting company to consider
and, if thought fit, approve, with or without modification, the proposed
Scheme of Demerger is dispensed with.
17. The demerged company no. 2 has 45 unsecured creditors, out of
which the applicants have placed on record the consents of only 20
unsecured creditors holding 60% of the total unsecured debt. I do not find
the consents sufficient to justify dispensation of the meeting of the
unsecured creditors. Under the circumstances, the applicant/demerged
company no. 2 is directed to convene and hold the meeting of its
unsecured creditors to seek their approval to the proposed Scheme of
Demerger. The meeting of the unsecured creditors of the demerged
company no. 2 shall be held on 2nd May, 2015 at 12:00 noon at the
registered office of the company at 3E/2, Jhandewalan Extension, New
Delhi - 110055. Mr. Rajeev Kumar, Advocate, (Mobile No. 9810466870)
is appointed as the Chairperson and Ms. Tanya Khanna, Advocate,
(Mobile No. 9650313588) is appointed as the Alternate Chairperson to
conduct the said meeting. The Quorum of the meeting of the unsecured
creditors of the demerged company no. 2 shall be 8 in number and more
than 15% in value of the total unsecured debt.
18. 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 demerged company no. 2 at least 48
hours before the meeting. The Chairperson and Alternate Chairperson
shall ensure that the proxy register is properly maintained.
19. The Chairperson and Alternate Chairperson shall ensure that
notices for convening the aforesaid meeting of the unsecured creditors of
the demerged company no. 2, along with copies of the Scheme of
Demerger and the statement under Section 393 of the Companies Act,
1956, shall be sent to the unsecured creditors of the demerged company
no. 2 by speed 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
"Statesman" (English) and "Veer Arjun" (Hindi) in terms of the Companies
(Court) Rules, 1959 at least 21 days before the date appointed for the
meeting.
20. The Chairperson and Alternate Chairperson will be at liberty to
issue suitable directions to the management of the demerged company
no. 2 so that the aforesaid meeting of the unsecured creditors of the
demerged company no. 2 is conducted in a just, free and fair manner.
21. 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.
22. The application stands allowed in the aforesaid terms.
Dasti
SUDERSHAN KUMAR MISRA, J.
March 26, 2015
