Delhi High Court
Appl Polymers Private Limited vs ... on 29 August, 2016
IN THE HIGH COURT OF DELHI
COMPANY APPLICATION (MAIN) NO. 93/2016
Reserved on 27th July, 2016
Date of pronouncement: 29th August, 2016
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:
APPL Polymers Private Limited
Applicant/Transferor Company
WITH
APPL Industries Limited
Applicant/Transferee Company
Through Mr. Anil Kumar Aggarwal,
Advocate for the applicant
SUDERSHAN KUMAR MISRA, J.
1. This joint application has been filed under Sections 391 and 394 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 APPL Polymers Private Limited (hereinafter referred to
as the transferor company) with APPL Industries 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 4th June, 2007 with the Registrar of Companies,
NCT of Delhi & Haryana at New Delhi under the name and style of
Sanskriti Callnet Private Limited. The company changed its name to
APPL Polymers Private Limited and obtained the fresh certificate of
incorporation on 16th April, 2012.
4. The transferee company was incorporated under the Companies
Act, 1956 on 22nd January, 2001 with the Registrar of Companies, NCT
of Delhi & Haryana at New Delhi.
5. The present authorized share capital of the transferor company is
Rs.5,00,000/- divided into 50,000 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.
6. The present authorized share capital of the transferee company is
Rs.25,00,00,000/- divided into 2,50,00,000 equity shares of Rs.10/- each.
The issued, subscribed and paid-up share capital of the company is
Rs.22,90,03,320/- divided into 2,29,00,332 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, along with the report of
the auditors, of the 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 submitted
by the applicants that as a measure of corporate restructuring and to
develop potential for future growth and to achieve the object of carrying
on the business more smoothly and profitably, rationalization of
management and financial structure, and for better and more profitable
utilization of combined resources of both the companies, it has been
proposed to amalgamate the transferor company into the transferee
company.
9. So far as the share exchange ratio is concerned, the Scheme
provides that the transferor company is a wholly owned subsidiary of the
transferee company, therefore, the transferee company shall not be
required to issue any shares or pay any consideration to the
shareholders of the transferor company.
10. It has been submitted by the applicants that no proceedings under
Sections 235 to 251 of the Companies Act, 1956 or under Sections 206
to 229 of the Companies Act, 2013 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 16th May, 2016 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 02 equity shareholders and 02
unsecured creditors. Both the equity shareholders 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 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. There is no
secured creditor of the transferor company, as on 30th April, 2016.
13. So far as the equity shareholders, secured and unsecured
creditors of the transferee company are concerned, the transferee
company has not provided the list of its equity shareholders, secured and
unsecured creditors. However, it was pleaded by learned counsel for the
applicants that since the transferor company is a wholly owned
subsidiary of the transferee company; the applicant companies are not
proposing any arrangement with their shareholders and creditors; and no
new shares will be issued on amalgamation, therefore, the rights of the
equity shareholders of the transferee company will not be affected. It is
further submitted that the present Scheme does not envisage any
compromise or arrangement by the transferee company with their
creditors and that the assets of transferee company are more than
sufficient to meet its liabilities towards its creditors, therefore, the rights of
the creditors of the transferee company will not be adversely affected.
Hence, their consents/NOC are not required to be obtained for the
proposed amalgamation.
14. In support of his submissions, learned counsel placed reliance on
the judgment of this Court in CA(M) 137/2015 titled as Convergys
Stream Private Limited & anr. wherein this court under similar
circumstances, and relying on the judgments of several High Courts
including this Court in many cases such as eMeter India Pvt. Ltd.;
(CA(M) 179/2012) Auto Tools India Pvt. Ltd. [CA(M) 41/2010], Sharat
Hardware Industries Pvt. Ltd. (1978), 48 Com.Cas 23 (Delhi),
Mahaamba Investments Ltd. V. IDI Limited (2001) 105 Com Cas. 16
(Bom.), Andhra Bank Housing Finance Ltd. (2004) 118 Com.Cas.
295(AP) and Prosell Field Marketing Pvt. Ltd. [CA(M) 63/2012], had
dispensed with the requirement of the transferee company having to
approach this Court under Section 391(2) of the Companies Act, 1956 for
sanction of the Scheme of Amalgamation.
15. I have carefully considered the proposed Scheme and the case
law cited at the Bar. In view of the submissions made at the bar, the
settled law on the subject and considering the Scheme of Amalgamation,
I do not think convening and holding the meetings of the equity
shareholders, secured and unsecured creditors of the transferee
company would serve any purpose, and, accordingly, the necessity of
holding 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.
16. The application stands allowed in the aforesaid terms.
Dasti
SUDERSHAN KUMAR MISRA, J.
August 29, 2016
