Delhi High Court
Eros Resorts And Hotels Limited vs ... on 5 May, 2015
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 652/2014
Reserved on 25th March, 2015
Date of pronouncement: 5th May, 2015
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):
And
Petition under Sections 391(2) and 394 read
with Section 100 of the Companies Act, 1956
Scheme of Arrangement between:
Eros Resorts and Hotels Limited
Petitioner/Demerged Company
AND
Eros Grand Resorts & Hotels Private Limited
Petitioner/Resulting Company
Through Ms. Malini Sud and Ms. Aditi
Sharma, Advocates for the petitioners
Ms. Aparna Mudiam, Assistant
Registrar of Companies for the
Regional Director
SUDERSHAN KUMAR MISRA, J.
1. This joint petition has been filed under Sections 391(2) and 394
read with Section 100 of the Companies Act, 1956 by the petitioner
companies seeking sanction of the Scheme of Arrangement between
Eros Resorts and Hotels Limited (hereinafter referred to as the demerged
company) and Eros Grand Resorts & Hotels Private Limited (hereinafter
referred to as the resulting company).
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 was originally incorporated under the
Companies Act, 1956 on 27th February, 2006 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name and
style of Eros Resorts and Hotels Private Limited. The company changed
its name to Eros Resorts and Hotels Limited and obtained the fresh
certificate of incorporation on 8th May, 2009.
4. The resulting company was incorporated under the Companies
Act, 1956 on 27th February, 2006 with the Registrar of Companies, NCT
of Delhi & Haryana at New Delhi.
5. The present authorized share capital of the demerged company is
Rs.2,82,00,00,000/- divided into 3,20,00,000 equity shares of Rs.10/-
each aggregating to Rs.32,00,00,000/-; 3,00,00,000 10% non-cumulative
redeemable preference shares of Rs.10/- each aggregating to
Rs.30,00,00,000/-; and 22,00,00,000 8.5% non-cumulative redeemable
preference shares of Rs.10/- each aggregating to Rs.2,20,00,00,000/-.
The issued, subscribed and paid-up share capital of the company is
Rs.2,60,35,70,500/- divided into 3,12,00,000 equity shares of Rs.10/-
each aggregating to Rs.31,20,00,000/-; 3,00,00,000 10% non-cumulative
redeemable preference shares of Rs.10/- each aggregating to
Rs.30,00,00,000/-; and 19,91,57,050 8.5% non-cumulative redeemable
preference shares of Rs.10/- each aggregating to Rs.1,99,15,70,500/-..
6. The present authorized share capital of the resulting company is
Rs.14,05,00,000/- divided into 1,40,50,000 equity shares of Rs.10/- each.
The 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.
7. Copies of the Memorandum and Articles of Association of the
demerged and resulting companies have been filed on record with the
joint application, being CA(M) 102/2014, earlier filed by the petitioners.
The audited balance sheets, as on 31st October, 2013, of the demerged
and resulting companies, along with the report of the auditors, had also
been filed.
8. 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 petition and the accompanying affidavit. It is submitted that
the Scheme, inter alia, provides for demerger of the Demerged
Undertaking viz. the Hotel known as Hotel Holiday Inn situated on Plot
No. 13A, Mayur Vihar, District Centre, Delhi into the resulting company. It
is claimed by the petitioners that the proposed demerger will result in
independent growth of business of both the companies and at the same
time benefit the stakeholders and creditors with returns.
9. 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 company in the following ratio:
"46.52 equity shares of Rs.10/- each of the resulting company
credited as fully paid up for every 100 equity shares of Rs.10/-
each held in the demerged company."
It is further provided that for every 100 fully paid up preference
shares held by the preference shareholders in the demerged company,
they shall be allotted 46.52 preference shares in the resulting company
and corresponding preference shares in the demerged company shall
stand cancelled.
10. It has been submitted by the petitioners that no proceedings under
Sections 235 to 251 of the Companies Act, 1956 are pending against the
demerged and resulting companies.
11. The Board of Directors of the demerged and resulting companies
in their separate meetings held on 24th December, 2013 have
unanimously approved the proposed Scheme of Arrangement. Copies of
the Resolutions passed at the meetings of the Board of Directors of the
demerged and resulting companies have been placed on record.
12. The petitioner companies had earlier filed CA (M) No. 102/2014
seeking directions of this court to dispense with the requirement of
convening the meetings of the equity and preference shareholders of the
demerged company and equity shareholders, secured and unsecured
creditors of the resulting company and for convening of separate
meetings of the secured and unsecured creditors of the demerged
company, which are statutorily required for sanction of the Scheme of
Arrangement. Vide order dated 29th May, 2014, this court allowed the
application and dispensed with the requirement of convening and holding
the meetings of the equity and preference shareholders of the demerged
company and equity shareholders, secured and unsecured creditors of
the resulting company and directed convening of separate meetings of
the secured and unsecured creditors of the demerged company, to
consider and, if thought fit, approve, with or without modification, the
proposed Scheme of Arrangement. Thereafter, vide order dated 13th
August, 2014, the demerged company was permitted to reconvene the
meeting of its secured creditors.
13. The Chairpersons of the ordered meetings of the secured and
unsecured creditors of the demerged company have filed their reports
stating that the meetings were duly convened and re-convened, as
directed, and that the Scheme of Arrangement has been approved
unanimously by the secured and unsecured creditors of the demerged
company, present and voting, in the meetings.
14. The petitioner companies have thereafter filed the present petition
seeking sanction of the Scheme of Arrangement. Vide order dated 17th
October, 2014, notice in the petition was directed to be issued to the
Regional Director, Northern Region. Citations were also directed to be
published in 'Business Standard' (English) and 'Jansatta' (Hindi) editions.
Affidavit of services has been filed by the petitioners showing compliance
regarding service on the Regional Director, Northern Region, and also
regarding publication of citations in the aforesaid newspapers on 19th
December, 2014. Copies of the newspaper clippings containing the
publications have been filed along with the said affidavit.
15. In response to the notices issued in the petition, Mr. A. K.
Chaturvedi, Regional Director, Northern Region, Ministry of Corporate
Affairs has filed his report dated 14th January, 2015. Relying on Clause
4.12(a) of Part-II of the Scheme, he has stated that, upon sanction of the
Scheme of Arrangement, all the employees of the demerged company
engaged in the Demerged Undertaking shall become the employees of
the resulting company without any break or interruption in their services.
16. No objection has been received to the Scheme of Arrangement
from any other party. The petitioner companies, in the affidavit dated 20th
January, 2015 of Ms. Malini Sud, counsel for the petitioner companies,
have submitted that no objection have been received pursuant to the
citations published in the newspapers on 19th December, 2014.
17. Considering the approval accorded by the shareholders and
creditors of the petitioner companies to the proposed Scheme of
Arrangement and the affidavit filed by the Regional Director, Northern
Region, not raising any objection to the proposed Scheme of
Arrangement, there appears to be no impediment to the grant of sanction
to the Scheme of Arrangement. Consequently, sanction is hereby
granted to the Scheme of Arrangement under Sections 391 and 394 read
with Section 100 of the Companies Act, 1956. The petitioner companies
will comply with the statutory requirements in accordance with law.
Certified copy of this order be filed with the Registrar of Companies within
30 days. It is also clarified that this order will not be construed as an
order granting exemption from payment of stamp duty as payable in
accordance with law. Upon the sanction becoming effective from the
appointed date of Arrangement, i.e. 1st November, 2013, the Demerged
Undertaking of the demerged company shall stand merged in the
resulting company.
18. Assistant Registrar of Companies on behalf of the Regional
Director prays that costs of Rs.1.0 lakh should be paid by the petitioners
keeping in view the fact that the matter has involved examination of
voluminous record from the office of the Regional Director as well as the
office of the Registrar of Companies for filing the reports. Learned
counsel for the petitioners states that the petitioner companies are willing
to pay the costs. Looking to the circumstances, the petitioner shall
deposit a sum of Rs.1.0 lakh by way of costs in the Common Pool Fund
of the Official Liquidator within one week from today.
19. The petition is allowed in the above terms.
Dasti.
SUDERSHAN KUMAR MISRA, J.
May 05, 2015
