Delhi High Court
Uzanto Consulting India Private ... vs ... on 21 May, 2015
IN THE HIGH COURT OF DELHI
COMPANY APPLICATION (MAIN) NO. 22/2015
Reserved on 24th March, 2015
Date of pronouncement: 21st May, 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 read with Rule 9 of the
Companies (Court) Rules, 1959
Scheme of Amalgamation of:
Uzanto Consulting India Private Limited
Applicant/Transferor Company
WITH
LinkedIn Technology Information Private Limited
Applicant/Transferee Company
Through Mr. Akhil Sibal, Mr. Amit
Mishra, Mr. Shashank Gautam,
Ms.Shraddha Deshmukh & Mr. Aditya
Singhal, Advocates for the applicants
SUDERSHAN KUMAR MISRA, J.
1. This joint application has been filed under Section 391 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, secured and unsecured creditors to consider and approve,
with or without modification, the proposed Scheme of Amalgamation of
Uzanto Consulting India Private Limited (hereinafter referred to as the
transferor company) with LinkedIn Technology Information 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 2nd June, 2004 with the Registrar of Companies, NCT of
Delhi & Haryana at New Delhi.
4. The transferee company was incorporated under the Companies
Act, 1956 on 31st December, 2009 with the Registrar of Companies, NCT
of Delhi & Haryana at New Delhi.
5. The present authorized share capital of the transferor company is
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 is Rs.6,00,010/-
divided into 60,001 equity shares of Rs.10/- each.
6. The present authorized share capital of the transferee company is
Rs.50,00,00,000/- divided into 5,00,00,000 equity shares of Rs.10/- each.
The issued, subscribed and paid up capital of the company is
Rs.1,19,47,440/- divided into 11,94,744 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
that the proposed amalgamation would result in pooling of resources of
the entities to their common advantage, resulting in more productive
utilization of the resources, costs and operational efficiencies, faster and
effective decision making and its implementation, which would be
beneficial for all stakeholders. It is further claimed that the proposed
amalgamation would result in economies of scale, reduction in overheads
and other expenses.
9. So far as the share exchange ratio is concerned, the Scheme
provides that transferee company will not issue any shares to the
shareholders of the transferor company as the transferor company is a
wholly owned subsidiary of the transferee company and all the equity
shares held by the transferee company in the transferor company will be
cancelled upon the Scheme becoming finally effective.
10. It has been submitted by the applicants that no proceedings under
Sections 235 to 250A 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 14th 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 02 equity shareholders. Both the
equity shareholders 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 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 is dispensed with.
13. The transferee company has 02 equity shareholders. Both the
equity shareholders 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 meeting of the
equity shareholders of the transferee company to consider and, if thought
fit, approve, with or without modification, the proposed Scheme of
Amalgamation is dispensed with.
14. The transferor company has unsecured creditors to the tune of
Rs.7,91,004/-. The consents of these unsecured creditors have not been
placed on record. The transferee company has unsecured creditors to
the tune of Rs.96,32,92,063/-, out of which one unsecured creditor,
namely LinkedIn Ireland, has given its consent/no objection in writing to
the proposed Amalgamation. The same has been placed on record and
found in order. The consents of remaining unsecured creditors to the
tune of Rs.53,76,25,927/- have not been placed on record. Learned
counsel for the applicants submitted that these creditors consist entirely
of sundry creditors and their dues are payable in the ordinary course of
business and the transferee company will continue to pay their dues with
its normal payment cycle. He has submitted that the transferee company
has sufficient financial resources to pay the amounts due to these sundry
creditors and neither the amounts nor any of the rights of the sundry
creditors will be varied pursuant to the Scheme. He has further submitted
that on amalgamation of the transferor company into the transferee
company, there is no negative impact on the net worth of the transferee
company and the net worth of the transferee company will increase post
merger and therefore, the interests of the creditors of the transferor and
transferee companies will not be adversely affected. He has placed on
record a certificate issued by V. V. Kale & Company, Chartered
Accountants, showing the pre and post amalgamation net worth of the
transferee company. He, therefore, prays that the requirement of
convening and holding the meetings of the unsecured creditors of the
transferor and transferee companies may kindly be dispensed with.
15. A perusal of the audited balance sheet of the transferor and
transferee companies, as on 31st March, 2014, reveals that the
companies have reserves and surplus of Rs.1,55,14,476/- and
Rs.16,13,24,858/- respectively. As per the certificate issued by V. V. Kale
& Company, Chartered Accountants, the post-amalgamation net worth of
the transferee company will increase from Rs.58,86,88,296/- to
Rs.59,19,29,185/-. Therefore, the rights of the unsecured creditors of the
transferor and transferee companies 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, the
requirement of convening and holding the meetings of the unsecured
creditors of the transferor and transferee companies 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
transferor and transferee companies, as on 30th September, 2014.
16. The application stands allowed in the aforesaid terms.
Dasti
SUDERSHAN KUMAR MISRA, J.
May 21, 2015
