Panshil Electro Private Limited vs ...
2016 Latest Caselaw 5082 Del

                     IN THE HIGH COURT OF DELHI
                 COMPANY APPLICATION (MAIN) NO. 84/2016
                                            Reserved on 30th May, 2016
                               Date of pronouncement: 3rd August, 2016
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):

And

Application under Sections 391, 392 and 394
of the Companies Act, 1956 read with Rules 6
& 9 of the Companies (Court) Rules, 1959

Scheme of Amalgamation of:

Panshil Electro Private Limited
                                            Applicant/Transferor Company
       WITH

Victora Auto Private Limited
                                           Applicant/Transferee Company

                                  Through Mr. P. Nagesh with Mr. Anand
                                  M.Mishra, Advocates for the applicants

SUDERSHAN KUMAR MISRA, J.

1. This joint application has been filed under Sections 391, 392 and

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 Panshil Electro Private Limited (hereinafter referred to

as the transferor company) with Victora Auto 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 17th May, 2005 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 26th July, 1991 with the Registrar of

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

style of SDL Auto Private Limited. The company changed its name to

Victora-SDL Auto Private Limited. The company again changed its name

to Victora Auto Private Limited and obtained the fresh certificate of

incorporation on 21st July, 2011.

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

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

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

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

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

Rs.5,00,00,000/- divided into 50,00,000 equity shares of Rs.10/- each.

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

Rs.2,99,32,160/- divided into 29,93,216 equity shares of Rs.10/- 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, 2015, of the transferor and

transferee companies, along with the report of the auditors, 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 affidavits. It is claimed

by the applicants that the proposed Scheme will result in the

establishment of a larger company with large resources, larger capital

base and greater capacity to raise funds for expansion, modernization

and development of the businesses of the companies concerned. It is

further claimed that the Scheme will enable the undertakings and

businesses of the said companies to obtain greater facilities possessed

and enjoyed by one large company for securing and conducting its

business on faourable terms and other benefits.

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 equity shares to the shareholders of the

transferor companies in the following ratio:

"01 equity share of Rs.10/- each of the transferee company for every 17.86 equity shares of Rs.10/- each held in the transferor company."

10. 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.

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

in their separate meetings held on 3rd December, 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.

12. The transferor company has 04 equity shareholders, 02 secured

creditors and 02 unsecured creditors. All the equity shareholders, both

the secured creditors and both 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 transferor company to consider

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

Scheme of Amalgamation is dispensed with.

13. The transferee company has 05 equity shareholders, 08 secured

creditor and 05 unsecured creditors, as on 31.12.2015. Learned counsel

for the applicants submitted that the debt of two secured creditors namely

Toyota Finance Service and Volkswagen Finance Private Limited has

been paid in full on 10th March, 2016 and 7th February, 2016 and the debt

(car loan) of the third secured creditor namely ICICI Bank Limited

amounting to Rs.4 to 5 lakhs is a minuscule amount, which liability will be

borne by the transferee company even after the amalgamation.

Therefore, presently there are only 06 secured creditors of the transferee

company. All the equity shareholders, 05 out of 06 secured creditors 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.

14. In addition to above, as on 31.12.2015, the transferor company

has 53 sundry creditors amounting to Rs.2,20,98,355.58/- and the

transferee company has 513 sundry creditors having credit value of

Rs.67,60,07,146.43/-, relating to goods/services, whose consents have

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

submitted that the debts of these sundry creditors are being paid off in

the normal course of business and the transferee company will continue

to pay their dues within its normal payment cycle. He has submitted that

the transferee company has sufficient financial resources to pay the

amounts due to these sundry creditors and neither the amounts nor any

of the rights of these sundry creditors will be varied pursuant to the

Scheme. He has further submitted that the transferee company has

sufficient net worth and, therefore, the interests of the creditors will not be

adversely affected. He has placed on record a certificate issued by

Kumar Sanjay & Associates, Chartered Accountants, stating that the net

worth of the transferee company, as on 31.12.2015 is Rs.61,49,59,006/-,

is sufficient to cover the liabilities towards the sundry creditors of the

transferor company, post amalgamation. Learned counsel, therefore,

prays that the requirement of convening and holding the meetings of the

sundry creditors of the transferor and transferee companies may kindly

be dispensed with.

15. A perusal of the audited balance sheet of the transferor and

transferee companies, as on 31st March, 2015, reveals that the

companies are profit making companies and have reserves and surplus

of Rs.40,24,523.19/- and Rs.47,25,18,520/- respectively. Further, as per

the certificate of Kumar Sanjay & Associates, Chartered Accountants, the

net worth of the transferee company is sufficient to take care of the

liabilities of the sundry creditors of the transferor company, post

amalgamation. Therefore, the rights of the sundry creditors of the

transferor and transferee companies are not likely to be affected and the

transferee company will continue to 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 meetings of the

sundry creditors of the transferor and transferee companies 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.

August 03, 2016