Delhi High Court
Bankey Bihari Marketing Private ... vs ... on 21 September, 2015
IN THE HIGH COURT OF DELHI
COMPANY APPLICATION (MAIN) NO. 148/2015
Reserved on 2nd 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 Section 391(1) of the
Companies Act, 1956
Scheme of Amalgamation of:
Bankey Bihari Marketing Private Limited
Applicant/Transferor Company No. 1
Suridhi Retail Private Limited
Applicant/Transferor Company No. 2
WITH
Suridhi Commercial Infra Private Limited
Applicant/Transferee Company
Through Mr. Rajeev K. Goel, 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 Bankey Bihari Marketing Private Limited (hereinafter
referred to as the transferor company no. 1) and Suridhi Retail Private
Limited (hereinafter referred to as the transferor company no. 2) with
Suridhi Commercial Infra 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 5th November, 2001 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
4. The transferor company no. 2 was originally incorporated under
the Companies Act, 1956 on 19th November, 2012 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi.
5. The transferee company was incorporated under the Companies
Act, 2013 on 5th March, 2015 with the Registrar of Companies, NCT of
Delhi & Haryana at New Delhi.
6. The present authorized share capital of the transferor company
no.1 is Rs.1,00,000/- divided into 10,000 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. The present authorized share capital of the transferor company
no.2 is Rs.1,93,00,000/- divided into 19,30,000 equity shares of Rs.10/-
each. The issued and subscribed capital of the company is
Rs.97,43,210/- divided into 9,74,321 equity shares of Rs.10/- each
including 2,36,588 equity shares which were forfeited. The paid-up share
capital of the company is Rs.85,56,563 divided into 7,36,834 equity
shares of Rs.10/- each, fully paid up, aggregating to Rs.73,68,340/-; 315
equity shares of Rs.10/- each, partly paid up to the extent of Rs.7.50/-
per share, aggregating to Rs.2363/-; 584 equity shares of Rs.10/- each,
partly paid up to the extent of Rs.5/- per share, aggregating to Rs.2,920/-;
and Rs.11,82,940/- being amount paid on 2,36,588 equity shares which
were forfeited due to non-payment of call money.
8. The present authorized share capital of the transferee 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.
9. 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, 2015, of the transferor and
transferee companies, along with the report of the auditors, have also
been filed.
10. 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 affidavits. It is
submitted by the applicants that the transferor and transferee companies
are closely held group companies and the proposed amalgamation would
result in business synergy, pooling of their resources and consolidation of
these companies. It is 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 resources 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.
11. 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:-
"785 equity shares of Rs.10/- each of the transferee company,
credited as fully paid up, for every 200 equity shares of Rs.10/-
held in the transferor company no. 1."
"96 equity shares of Rs.10/- each of the transferee company,
credited as fully or partly paid up, for every 100 equity shares
of Rs.10/- held in the transferor company no. 2. In case of
partly paid shares in the transferor company no. 2, the
transferee company will issue equity shares credited as partly
paid up to the same extent as in the transferor company no. 2
as on the record date."
12. 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.
13. The Board of Directors of the transferor and transferee companies
in their separate meetings held on 11th July, 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.
14. The transferor company no. 1 has 03 equity shareholders and 05
unsecured creditors. In addition to 05 unsecured creditors, the transferor
company no. 1 has statutory dues payable which has been paid by the
company and the proof of said payment has been placed on record. All
the equity shareholders and 03 out of 05 unsecured creditors, being 60%
in number and 98.62% 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
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.
15. The transferor company no. 2 has 06 equity shareholders
(including fully and partly paid up) and 22 unsecured creditors. In addition
to 22 unsecured creditors, the transferor company no. 2 has certain
statutory dues payable which have been paid by the company and the
proof of said payments has been placed on record. All the equity
shareholders and 18 out of 22 unsecured creditors, being 81.82% in
number and 99.42% 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
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 one secured creditor of the transferor company
no. 2 namely ICICI Bank Limited, as on 31st March, 2015, whose dues
have been paid in full and a certificate in this regard is placed on record.
Therefore, at present there is no secured creditor of the transferor
company no. 2.
16. The transferee company has 02 equity shareholders and 03
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 transferee 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 transferee company, as on 31st March, 2015.
17. The application stands allowed in the aforesaid terms.
Dasti
SUDERSHAN KUMAR MISRA, J.
September 21, 2015
