Delhi High Court

Puriflair India Private Limited vs ... on 28 September, 2015

                     IN THE HIGH COURT OF DELHI
              COMPANY APPLICATION (MAIN) NO. 117/2015

                                        Reserved on 25th August, 2015
                          Date of pronouncement: 28th September, 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 Rule 9 of the
Companies (Court) Rules, 1959

Scheme of Amalgamation of:

Puriflair India Private Limited
                                           Applicant/Transferor Company
       WITH

Delair India Private Limited
                                           Applicant/Transferee Company

                                  Through Mr. Ashim Sood, Advocate for
                                  the applicant

SUDERSHAN KUMAR MISRA, J.

1. This joint application has been filed under Sections 391 to 394 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 Puriflair India Private Limited (hereinafter referred to as

the transferor company) with Delair India 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 originally incorporated under the

Companies Act, 1956 on 23rd May, 1997 with the Registrar of

Companies, Gujarat. Thereafter, the company shifted its registered office

from the State of Gujarat to Delhi and obtained a certificate in this regard

from the Registrar of Companies, NCT of Delhi & Haryana at New Delhi

on 11th July, 2014.

4. The transferee company was incorporated under the Companies

Act, 1956 on 14th December, 1988 with the Registrar of Companies, NCT

of Delhi & Haryana at New Delhi.

5. The present authorized share capital of the transferor company is

Rs.7,00,00,000/- divided into 70,00,000 equity shares of Rs.10/- each.

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

Rs.6,59,06,650/- divided into 65,90,665 equity shares of Rs.10/- each.

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

Rs.50,00,000/- divided into 5,000 equity shares of Rs.1,000/- each. The

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

Rs.27,00,000/- divided into 2,700 equity shares of Rs.1,000/- 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, along with the report of

the auditors, and the unaudited financial statements, as on 31st March,

2015, of 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 create greater

synergies between the businesses of both the companies and would

enable them to have large asset base, access to better financial

resources as well as enable them to manage their business more

efficiently by effectively pooling the infrastructure and other resources of

each other. It is further claimed that the proposed amalgamation shall

result in enhancement of net worth of the combined business to

capitalize on future growth potential.

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

provides that, upon coming into effect of this Scheme, no consideration

shall be payable by the transferee company since the transferee

company (itself and through its nominee) is the only shareholder of the

transferor company, and no shares shall be allotted by the transferee

company either to itself or to any of its nominee shareholders holding

shares in the transferor company.

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

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

the transferor and transferee companies.

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

in their separate meetings held on 24th July, 2014 have unanimously

approved the proposed Scheme of Amalgamation. Copies of the

Resolutions passed at the meetings of the Board of Directors of

transferor and transferee companies have been placed on record.

12. The transferor company has 02 equity shareholders and 01

secured creditor. Both the equity shareholders and the sole secured

creditor have given their consents/no objections in writing to the

proposed Scheme of Amalgamation. There 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 secured creditor of the transferor company, to consider

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

Scheme of Amalgamation is dispensed with.

13. As on 31.03.2015, the transferor company has 137 unsecured

creditors to whom a sum of Rs.1,31,58,015/- was payable. Learned

counsel for the applicants has submitted that one unsecured creditor

namely Sh. Deepak Pahawa, who is a stated to be the Director and

shareholder of both the companies, and to whom a sum of

Rs.50,00,000/- is payable, has given his consent/no objection to the

proposed Scheme of Amalgamation. However, the consents/no

objections or the remaining 136 unsecured creditors to the tune of

Rs.81,58,015/- have not been placed on record. Learned counsel for the

applicants has submitted that these creditors are sundry and trade

creditors and the transferor company meets its obligations towards them

in the ordinary course of business and that post amalgamation, the

transferee company will continue to pay their dues in its normal payment

cycle. In support of his submissions, learned counsel has placed on

record a comparative chart showing the payments made to these

creditors during the period from April to June, 2015. He has further

submitted that a perusal of the said chart reveals that the debt of

substantial number of unsecured creditors have been paid and as on 30th

June, 2015, only a sum of Rs.11,23,059/- is payable to these unsecured

creditors as compared to Rs.81,77,719/- that was payable as on 31st

March, 2015. Learned counsel has further submitted that the transferee

company has sufficient financial resources to pay the amounts due to

these creditors and neither the amounts nor any of the rights of these

creditors will be varied pursuant to the Scheme. In support of his

submission, learned counsel has also placed on record a certificate

issued by Shailender K. Bajaj & Co., Chartered Accountants, showing the

pre and post amalgamation net worth of the transferee company,

according to which, post amalgamation, the net worth of the transferee

company will increase from Rs.5,32,33,866/- to Rs.13,28,31,303/-.

Learned counsel, therefore, prays that the requirement of convening and

holding the meeting of the unsecured creditors of the transferor company

may kindly be dispensed with. In view of the submissions made at the

bar and the fact that the trade creditors are day-to-day creditors, whose

sum will be payable in normal course of business, the requirement of

convening the meeting of the unsecured creditors of the transferor

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 02 equity shareholders and 01

secured creditor. Both the equity shareholders and the sole secured

creditor have given their consents/no objections in writing to the

proposed Scheme of Amalgamation. There 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 secured creditor of the transferee company, to

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

proposed Scheme of Amalgamation is dispensed with.

15. As on 31.03.2015, the transferee company has 83 unsecured

creditors to whom a sum of Rs.1,24,30,896/- was payable but their

consents/no objections to the Scheme of Amalgamation has not been

placed on record. Learned counsel for the applicants has submitted that

these creditors are sundry and trade creditors, who are suppliers and

traders conducting regular business with the transferee company. He has

further submitted that the transferee company has been repaying its

unsecured creditors in a regular and timely manner. In support of his

submissions, learned counsel has placed on record a comparative chart

showing the payments made to these creditors. He has further submitted

that a perusal of the said chart reveals that the debt of substantial

number of unsecured creditors have been paid and as on 30th June,

2015, only a sum of Rs.28,64,389/- is payable to these unsecured

creditors as compared to Rs.1,27,43,078/- that was payable as on 31st