Aspire Impex Private Limited vs ...
2015 Latest Caselaw 4162 Del

                  IN THE HIGH COURT OF DELHI
              COMPANY APPLICATION (MAIN) NO. 85/2015

                                          Reserved on 19th May, 2015
                               Date of pronouncement: 25th May, 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 Amalgamation of:

Aspire Impex Private Limited
                                           Applicant/Transferor Company
       WITH

Welspun Poly Buttons Private Limited
                                          Applicant/Transferee Company

                               Through Mr. Kunal Tandon and
                               Ms.Kanika Jain, 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

Amalgamation of Aspire Impex Private Limited (hereinafter referred to as

the transferor company) with Welspun Poly Buttons 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 3rd February, 2010 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 May, 1991 with the Registrar of

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

style of Welspun Poly Buttons Private Limited. The company changed its

name to G.D. Goenka Global Private Limited and obtained the fresh

certificate of incorporation on 17th February, 2000. The company again

changed its name to Welspun Poly Buttons Private Limited and obtained

the fresh certificate of incorporation on 5th July, 2004.

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 share capital of the company is

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

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

Rs.7,00,00,000/- divided into 50,00,000 equity shares of Rs.10/- each

aggregating to Rs.5,00,00,000/- and 20,00,000 12% redeemable

preference shares of Rs.10 each aggregating to Rs.2,00,00,000/-. The

issued, subscribed and paid-up share capital of the company is

Rs.1,82,61,680/- divided into 17,44,168 equity shares of Rs.10/- each

fully paid-up aggregating to Rs.1,74,41,680/- and 4,10,000 equity shares

of Rs.10 each Rs.2/- paid up aggregating to Rs.8,20,000/-.

7. Copies of 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, and the

provisional accounts, as on 31st March, 2015, of the transferor and

transferee companies 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 would lead to

consolidation and simplification of holding structure; reducing operating

and compliances cost; and achieving operational and management

efficiency. It is further claimed that the amalgamation will improve

organizational capability arising from the pooling of human capital that

has diverse skills, talent and vast experience.

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

provides that, upon coming into effect of this Scheme, the transferee

company shall issue and allot preference shares to the shareholders of

the transferor company in the following ratio:-

"164 fully paid up preference shares of Rs.10/- each of the transferee company for every 01 equity share of Rs.10/- each held in the transferor company."

10. It has been submitted by the applicants that no proceedings under

Sections 237, 243, 247(1A), 250A and 251 of any other applicable

provisions of the Companies Act, 1956 or 210, 212 (1) to (7) & (11) to

(17), 214, 215, 216 (1) & (3), 217, 219, 220, 223, 224 (1), (3) & (4) and

225 or any other applicable provisions of the Companies Act, 2013 are

pending against the applicant companies.

11. The Board of Directors of the transferor and transferee companies

in their separate meetings held on 15th December, 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 and 01

unsecured creditor. Both the equity shareholders and the only unsecured

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 unsecured creditor of the transferor 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 transferor company, as on 8th January, 2015.

13. The transferee company has 06 equity shareholders and 50

unsecured creditors. All the equity shareholders and 46 out of 50

unsecured creditors, being 92% in number 99.84% in value, 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.

14. The transferee company has 03 secured creditors having secured

debt of Rs.3,74,50,605/-. The consents of these secured creditors have

not been placed on record. Learned counsel for the applicants submitted

that the Scheme is not prejudicial to the interest of these secured

creditors and the Scheme neither contemplate any variation of the right

of these creditors nor does it contemplate extinction or reduction of their

liability. He has further submitted that the payment due to these secured

creditors would be settled in regular course as per the payment cycle of

business, post amalgamation. He has also submitted that assets

transferred from the transferor company to the transferee company will

be more than the liabilities transferred on merger and will be sufficient to

discharge the liabilities transferred. He has also submitted that the

amalgamation will have no negative impact on the net worth the

transferee company and, in fact, the net worth of the transferee company

will increase from Rs.97.54 lakhs to Rs.261.54 lakhs, post amalgamation.

In support of his submission, he has placed on record a certificate dated

13th May, 2015 issued by Bask & Associates, 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 meeting of the secured creditors of the transferee company

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.1,62,60,918/- and

Rs.78,67,823.80 respectively. As per the certificate issued by Bask &

Associates, Chartered Accountants, the post-amalgamation net worth of

the transferee company will increase from Rs.97.54 lakhs to Rs.261.54

lakhs. In the Net Worth Certificate, the Chartered Accountants have also

opined that the interest of the secured and unsecured creditors of the

transferee company are not likely to be adversely affected by the

proposed Scheme and the company would be in a better position to

discharge all its liabilities upon sanction of the Scheme. In view thereof,

the rights of the secured creditors of the transferee 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, the requirement of convening and

holding the meeting of the secured creditors of the transferee company to

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

proposed Scheme of Amalgamation is dispensed with.

16. The Application stands allowed in the aforesaid terms.

Dasti

SUDERSHAN KUMAR MISRA, J.

May 25, 2015