Delhi High Court
Unicommerce Esolutions Pvt. Ltd. vs Jasper Infotech Private Ltd. on 20 October, 2015
Author: Rajiv Shakdher
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ COMPANY APPLICATION (MAIN) NO. 88/2015
IN THE MATTER OF
THE COMPANIES ACT, 1956 & THE COMPANIES ACT, 2013
(TO THE EXTENT APPLICABLE)
AND
APPLICATION UNDER SECTIONS 391 AND 394
OF THE COMPANIES ACT, 1956.
SCHEME OF AMALGAMATION OF :
UNICOMMERCE ESOLUTIONS PVT. LTD.
..... APPLICANT No.1/ TRANSFEROR
COMPANY
WITH
JASPER INFOTECH PRIVATE LTD.
..... APPLICANT No.2/ TRANSFEREE
COMPANY
Through: Mr Rajiv Nayar, Sr. Adv. with Mr
Avimukt Dar, Mr Mohit Chadha, Mr Ishwar
Upneja & Ms Trisha Raychaudhuri, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 20.10.2015
1. This is a joint application filed under Section 391 and 394 of the
Companies Act, 1956 on behalf of the applicants herein. Applicant no.1 is
the transferor company, while applicant no.2 is the transferee company.
1.1 Both the applicants have their registered office, located within the
territorial jurisdiction of this court.
2. By virtue of this application, the applicants have made, primary
prayers, to the following effect :-
(i). Dispensation of convening of the meeting of equity shareholders,
preference shareholders and unsecured creditors.
2.1 A consequential prayer has been made to dispense with issuance and
publication of the notice with regard to the meetings of equity shareholders,
preference shareholders and unsecured creditors.
2.2 These prayers, as indicated above, is made both by applicant no.1 and
applicant no.2 with respect to their respective equity shareholders,
preference shareholders and unsecured creditors.
2.3 To be noted, hereon, I would be referring to applicant no.1 as the
transferor company and applicant no.2 as the transferee company, while
collectively they would be referred to as the applicants.
2.4 In the application, it is averred that the authorised share capital of the
transferor company as on 28.02.2015 is a sum equivalent to Rs.30,44,000/-
with issued, subscribed and paid-up capital equivalent to Rs.13,62,100/-.
The details with regard to the composition of the authorized, issued,
subscribed and paid-up capital are set up in paragraph 4(b) of the
application.
2.5 In so far as the transferee company is concerned, it is averred that as
on even date (i.e. 28.02.2015), it has an authorised capital of
Rs.2,04,50,000/- with issued, subscribed and paid up capital equivalent to
Rs.1,37,33,260/-. The details with regard to the composition of the same
are set out in paragraph 5(b) of the application.
2.6 It is further averred that the accounts of the transferor company as on
31.03.2014 have been duly audited and approved by its Board of Directors,
and that, after the said date on which the audited accounts have been drawn
up, there has been no change in its financial position except that, which has
arisen, in the usual and normal course of business.
2.7 As regards the transferee company, it is stated that accounts drawn up
as on 31.03.2014, have been duly audited and approved by its Board of
Directors. It is, however, averred that subsequent to the date of the audited
accounts, the transferee company has received investments and therefore,
as indicated above, the issued, subscribed and paid-up capital, as on
28.02.2015, reached a figure of Rs.1,37,33,260/-. The details with respect
to the investments received is set out in para 7(c) of the application.
2.8 More importantly, it is averred that the aggregate assets of the
transferor and transferee companies after the scheme comes into effect
shall be more than sufficient to meet their respective liabilities, and that,
the scheme, will not adversely affect the rights of the creditors of the
transferor and / or transferee company.
2.9 It is also averred that provisions have been made for payment of all
liabilities, as and when they arise, in the usual course of business.
3. The financial position of the transferor company which would obtain
as on the appointed date has been set out in paragraph 9 of the application.
4. Briefly, the reasons articulated for propounding the scheme of
amalgamation are as follows :-
(i). That there shall be cost savings due to rationalization and
standardization of business processes.
(ii). The transferor company will get access to a wider customer base,
while the transferee company, will have access to technology that is useful
to promote market-place operations.
(iii). Amalgamation is expected to achieve business synergies and make its
operations economical.
(iv). Lastly, rationalization of business operations would enable it to
achieve growth and diversification, besides, leading to optimization of
costs and resources.
4.1 It is also averred that the scheme has been approved by the Board of
Directors of both the transferor and transferee companies. The scheme has
been appended as Annexure 'U' to the application.
4.2 It is stated that the scheme will get triggered with effect from
01.04.2014, and that, with the narration of the scheme, the transferor
company shall stand amalgamated and merged with the transferee
company.
4.3 There is also an averment to the effect, in paragraph 14 of the
application that, the directors of the transferor and the transferee company
have no material interest in the matter except to the extent that Mr. Kunal
Bahl and Mr. Rohit Bansal, who are the promoters of the transferee
company are also shareholders of the transferor company. It is stated that
both Mr. Kunal Bahl and Mr. Rohit Bansal, separately, hold equity shares
to the extent of 4.41% in the transferor company.
4.4 A declaration is made to the effect that no investigation or
proceedings have been instituted or are pending against the transferor and
the transferee company either under the Companies Act, 1956 and / or
under the Companies Act, 2013.
4.5 The position with regard to the number of equity shareholders,
preference shareholders, secured and unsecured creditors and the fact
whether or not consents to proposed scheme have been received from them
and if so, to what extent, is set out in the table given below :-
Transferor Transferee
Co. Co.
Consents Given 6 (100%) 8 (96.30%)
Consents Given 1 (100%) 16 (86.99%)
No. of Secured Creditors Nil Nil
Consents Given n.a. n.a.
Creditors
Consents given 77% 50%
5. Consents given qua the proposed scheme by the equity shareholders,
preference shareholders, both of the transferor and transferee company
have been examined. In view of the fact that these are found in order, the
requirement of convening a meeting of equity shareholders and preference
shareholders of transferor and transferee company, is dispensed with
subject to the condition indicated in paragraph 8 below.
5.1 In so far as the unsecured creditors of the transferor company are
concerned, in substance it is averred that these unsecured creditors are
trade creditors or sundry creditors and not lenders, whose dues are settled
in short intervals of 21 days. It is further averred that the proposed scheme
will not adversely affect their interest given these assertions coupled with
the fact that 77% have given their consent to the proposed scheme, the
meeting of the unsecured creditors of transferor company is dispensed with.
5.2 As regards, unsecured trade creditors of the transferee company, it is
averred, once again, that they are, in effect, trade creditors or sundry
creditors. In this case also, it is reiterated that the unsecured creditors are
not lenders to the transferee company. Furthermore, it is averred that these
trade creditors or sundry creditors are sellers registered with the transferee
company, who sell their products on the on-line market place maintained
by the transferee company. It is stated that upon sale of products to the end
consumers, the consideration received is transferred to a "nodal account"
qua which the transferor company acts as a custodian. It is further averred
that the amounts lying in the nodal account are thereafter collected by the
registered sellers. In other words, it is projected that the amounts due to
such unsecured creditors (i.e. trade creditors) is not available to the
transferee company on a day-to-day basis as it is maintained separately in a
nodal account.
5.3 The case set up on this score, is that, the transferee company will have
the ability to discharge the debts and liabilities of the unsecured creditors
if, the proposed scheme is approved by this court, and that, the said scheme
does not adversely affect their interest.
5.4 It is further averred that the transferee company is in a position to
discharge its debts and liabilities.
5.5 In support of this contention, Mr. Nayar, has relied upon a judgment
of the learned single Judge of this court dated 14.09.2012, passed in Co.
Appl.(M) No.147/2012, in the case of : Vodafone Digilink Ltd. and Ors.
5.6 Pertinently, the aspect with regard to the grant of permission to
dispense with the meeting of unsecured creditors of the transferor and
transferee companies came up before my predecessor on 17.07.2015 when,
accommodation was sought by the counsels for the applicants to file
additional affidavit in respect of the same.
5.7 Thereupon an additional affidavit dated 04.08.2015, was filed by one,
Mr. Manish Kumar, Company Secretary of the transferee company. This is
reflected in the proceedings held by my predecessor, on 06.08.2015. In
that proceeding, it is, inter alia, recorded that in terms of the affidavit, the
transferee company has taken over the obligation qua the unsecured
creditors of both the transferor and transferee company.
5.8 Thereafter, in the proceedings held on 29.09.2015, it got recorded that
a certificate dated 11.08.2015 of Deutsche Bank Ltd. has been filed. Since,
the certificate was not on record, the matter was adjourned.
6. I have perused the record. The affidavit dated 04.08.2015 of Mr.
Manish Kumar, Company Secretary of the transferee company is on record.
As indicated above, the transferee company has undertaken to pay the
liabilities of the unsecured creditors of the transferor and transferee
company. Furthermore, a perusal of the certificate dated 11.08.2015,
issued by Deutsche Bank Ltd., shows that a nodal account is in operation,
as indicated above, in terms of : "agreement for processing payments of
intermediatories" . This agreement, apparently, was executed, as per the
said certificate, between Deutsche Bank Ltd. and transferee company, on
01.03.2015 for facilitating payments to merchants for on-line sale of goods
and services and to bring about final settlement of the obligations of the
paying customers. The certificate also bears out that the said arrangement
between the transferee company and Deutsche Bank Ltd. shall continue to
operate in terms of the agreement entered into between them, even after the
scheme as proposed is approved by this court.
7. To be noted, both the transferor and transferee company have no
secured creditors.
8. Having regard to the aforesaid, as indicated above, the prayer made in
the application for dispensing the meeting of the equity shareholders and
preference shareholders, of both transferor and transferee company is
allowed; their meeting is dispensed with. In so far as the unsecured
creditors of the transferor and transferee company is concerned, the
convening of the meeting is dispensed with subject to the applicant
companies undertaking to issue separate notices to all unsecured creditors,
whose names are listed out in Annexure J (at pages 169-171 of the paper
book) and Annexure 'T' (at pages 414-416 of the paper book) to seek their
objections, if any, when notices are issued on the confirmation petition for
obtaining sanction qua the proposed scheme.
9. The captioned application is disposed of, in the aforesaid terms.
RAJIV SHAKDHER, J.
OCTOBER 20, 2015
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