Bgk Commodities Private Limited vs ...
2015 Latest Caselaw 7180 Del

                   IN THE HIGH COURT OF DELHI
              COMPANY APPLICATION (MAIN) NO. 147/2015

                                    Reserved on 1st September, 2015
                        Date of pronouncement: 21st September, 2015
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):

And

Application under Sections 391(1) of the
Companies Act, 1956

Scheme of Amalgamation of:

BGK Commodities Private Limited
                                      Applicant/Transferor Company No. 1

BGNS Infratech Private Limited
                                      Applicant/Transferor Company No. 2

Kay Ess Aar Infratech Private Limited
                                    Applicant/Transferor Company No. 3

Panjwani Properties Private Limited
                                      Applicant/Transferor Company No. 4
       WITH

BGK Infratech Private Limited
                                           Applicant/Transferee Company

                                Through    Mr.     Mukesh       Sukhija,
                                Advocate for the applicants

SUDERSHAN KUMAR MISRA, J.

1. This joint Application has been filed under Section 391(1) of the

Companies Act, 1956, 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 BGK Commodities Private Limited (hereinafter referred

to as the transferor company No. 1), BGNS Infratech Private Limited

(hereinafter referred to as the transferor company No. 2); Kay Ess Aar

Infratech Private Limited (hereinafter referred to as the transferor

company No. 3) and Panjwani Properties Private Limited (hereinafter

referred to as the transferor company No. 4) with BGK Infratech 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 no. 1 was incorporated under the

Companies Act, 1956 on 24th October, 2008 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

4. The transferor company no. 2 was incorporated under the

Companies Act, 1956 on 31st January, 2007 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

5. The transferor company no. 3 was incorporated under the

Companies Act, 1956 on 17th November, 2006 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

6. The transferor company no. 4 was incorporated under the

Companies Act, 1956 on 5th November, 1986 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi.

7. The transferee company was originally incorporated under the

Companies Act, 1956 on 17th December, 2004 with the Registrar of

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

style of S. S. Horticultures Private Limited. The company changed its

name to BGK Infratech Private Limited and obtained the fresh certificate

of incorporation on 15th April, 2015.

8. The present authorized share capital of the transferor company

no.1 is Rs.50,00,000/- divided into 5,00,000 equity shares of Rs.10/-

each. The issued, subscribed and paid-up share capital of the company

is Rs.1,50,000/- divided into 15,000 equity shares of Rs.10/- each.

9. The present authorized share capital of the transferor company

no.2 is Rs.1,50,00,000/- divided into 15,00,000 equity shares of Rs.10/-

each. The issued, subscribed and paid-up share capital of the company

is Rs.1,50,00,000/- divided into 15,00,000 equity shares of Rs.10/- each.

10. The present authorized share capital of the transferor company

no.3 is Rs.25,00,000/- divided into 2,50,000 equity shares of Rs.10/-

each. The issued, subscribed and paid-up share capital of the company

is Rs.22,00,000/- divided into 2,20,000 equity shares of Rs.10/- each.

11. The present authorized share capital of the transferor company

no.4 is Rs.1,25,00,000/- divided into 12,50,000 equity shares of Rs.10/-

each. The issued, subscribed and paid-up share capital of the company

is Rs.1,24,90,000/- divided into 12,49,000 equity shares of Rs.10/- each.

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

Rs.7,68,00,000/- divided into 62,30,000 equity shares of Rs.10/- each

aggregating to Rs.6,23,00,000/-; 10,50,000 18% non-cumulative

redeemable optionally convertible preference shares of Rs.10/- each

aggregating to Rs.1,05,00,000/-; and 4,00,000 9% non-cumulative

redeemable optionally convertible preference shares of Rs.10/-

aggregating to Rs.40,00,000/-. The issued, subscribed and paid-up share

capital of the company is Rs.3,23,00,200/- divided into 32,30,020 equity

shares of Rs.10/- each.

13. 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, have also

been filed.

14. 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 submitted

by the applicants that the transferor companies no. 1, 2 & 4 are earning

income out of sale of plants; transferor company no. 3 is not engaged in

any business activity and the transferee company is engaged in the

agricultural activities. It is claimed that the proposed amalgamation would

result in business synergy and consolidation of these companies into one

large company with a stronger asset base. It is further claimed that the

proposed amalgamation will result in usual economies of a centralized

and a large company including elimination of duplicate work, reduction in

overheads, better and more productive utilization of human and other

resource and enhancement of overall business efficiency. It will enable

these Companies to combine their managerial and operating strength, to

build a wider capital and financial base and to promote and secure

overall growth of their businesses.

15. 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 equity shares to the shareholders of the

transferor companies in the following ratio:-

"2538 equity shares of Rs.10/- each of the transferee company for every 100 equity shares of Rs.10/- each held in the transferor company no. 1."

"19 equity shares of Rs.10/- each of the transferee company for every 100 equity shares of Rs.10/- each held in the transferor company no. 2."

"25 equity shares of Rs.10/- each of the transferee company for every 100 equity shares of Rs.10/- each held in the transferor company no. 3."

"10 equity shares of Rs.10/- each of the transferee company for every 100 equity shares of Rs.10/- each held in the transferor company no. 4."

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

Sections 235 to 251 of the Companies Act, 1956 are pending against the

applicant companies.

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

in their separate meetings held on 30th May, 2015 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.

18. The transferor company no. 1 has 03 equity shareholders and 11

unsecured creditors. All the equity shareholders and 10 out of 11

unsecured creditors, being 90.90% in number and 99.96% 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 creditor of the transferor company no. 1 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 no. 1, as on 31st March, 2015.

19. The transferor company no. 2 has 02 equity shareholders and 06

unsecured creditors. Both the equity shareholders and all the unsecured

creditors 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 transferor company no. 2 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 no. 2, as on 31st March, 2015.

20. The transferor company no. 3 has 03 equity shareholders and 05

unsecured creditors. All the equity shareholders and all the unsecured

creditors 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 transferor company no. 3 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 no. 3, as on 31st March, 2015.

21. The transferor company no. 4 has 07 equity shareholders and 10

unsecured creditors. All the equity shareholders and all the unsecured

creditors 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 transferor company no. 4 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 no. 4, as on 31st March, 2015.

22. The transferee company has 19 equity shareholders, 01 secured

creditor and 13 unsecured creditors. All the equity shareholders, the sole

secured creditor and all the unsecured creditors 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,

secured 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.

23. The Application stands allowed in the aforesaid terms.

Dasti

SUDERSHAN KUMAR MISRA, J.

September 21, 2015