Delhi High Court
Indeen Bio Power Limited vs .... on 29 August, 2016
IN THE HIGH COURT OF DELHI
COMPANY PETITION NO. 636/2015
Reserved on 22nd 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
Petition under Sections 391 to 394(A) read
with Sections 100 to 104 of the Companies
Act, 1956
Scheme of Arrangement between:
Indeen Bio Power Limited
Petitioner Company
AND
Its shareholders
Through Mr. Abhishek Kumar and
Mr.Vikas Goel, Advocates for the
petitioners
Ms. Aparna Mudiam, Asstt. Registrar
of Companies for the Regional Director
SUDERSHAN KUMAR MISRA, J.
1. This petition has been filed under Sections 391 to 394(A) read with
Sections 100 to 104 of the Companies Act, 1956 by the petitioner
company seeking sanction of the Scheme of Arrangement between
Indeen Bio Power Limited (hereinafter referred to as the petitioner
company) and its shareholders.
2. The registered office of the petitioner company is situated at New
Delhi, within the jurisdiction of this Court.
3. The petitioner company was incorporated under the Companies
Act, 1956 on 18th August, 2006 with the Registrar of Companies, NCT of
Delhi & Haryana at New Delhi.
4. The present authorized share capital of the petitioner company is
Rs.5,00,00,000/- divided into 50,00,000 equity shares of Rs.10/- each.
The issued and subscribed capital of the company is Rs.5,00,00,000/-
divided into 50,00,000 equity shares of Rs.10/- each. The paid up share
capital of the company is Rs.2,78,00,000/- divided into 13,00,000 equity
shares of Rs.10/- each fully paid up aggregating to Rs.1,30,00,000/- and
37,00,000 partly paid up equity shares of Rs.10/- each (Rs.4/- paid up)
aggregating to Rs.1,48,00,000/-.
5. A copy of Memorandum and Articles of Association of the
petitioner company has been filed on record. The audited balance sheet,
as on 31st March, 2014, of the petitioner company, along with the report
of the auditors, and the unaudited provisional financial statements of the
petitioner company, as on 15th February, 2015, has also been filed.
6. A copy of the Scheme of Arrangement has been placed on record
and the salient features of the Scheme have been incorporated and
detailed in the petition and the accompanying affidavits. It is submitted
by the petitioners that the paid-up share capital of the company of
Rs.2,78,00,000/- consists of 13,00,000 fully paid up equity shares of
Rs.10/- each and 37,00,000 partly paid-up equity shares (Rs.4/- paid up)
shall stand reduced to Rs.2,50,00,000/- consisting of 25,00,000 fully paid
up equity shares of Rs.10/- each. It is further submitted that the present
arrangement shall also result into reduction of issued and subscribed
share capital of the company from Rs.5,00,00,000/- consisting of
50,00,000 equity shares of Rs.10/- each to Rs.2,50,00,000/- consisting of
25,00,000 equity shares of Rs.10/- each. The authorized share capital of
the company will continue to be Rs.5,00,00,000/- consisting of 50,00,000
equity shares of Rs.10/- each. It is further submitted that the arrangement
will result in creation of additional reserve and surplus to the extent of
Rs.28,00,000/- which shall form part of Securities Premium Account. It is
claimed that the proposed arrangement will result in retaining the cash
reserve of the company and will not result in any outflow of funds from it.
7. It has been submitted by the petitioner that no proceedings under
Sections 235 to 251 of the Companies Act, 1956 are pending against the
petitioner company.
8. The Board of Directors of the petitioner company in their meeting
held on 9th December, 2014 have unanimously approved the proposed
Scheme of Arrangement. The members of the petitioner company in their
extra-ordinary general meeting held on 5th January, 2015 have also
unanimously approved the proposed Scheme of Arrangement. Copies of
the Resolutions passed at the meeting of the Board of Directors and the
extra-ordinary general meeting of the shareholders of the petitioner
company has been placed on record.
9. The petitioner company had earlier filed CA (M) No. 102/2015
seeking directions of this court to dispense with the requirement of
convening the meetings of its equity shareholders, secured and
unsecured creditors, which are statutorily required for sanction of the
Scheme of Arrangement. Vide order dated 22nd July, 2015, this court
allowed the application and dispensed with the requirement of convening
and holding the meetings of the equity shareholders, secured and
unsecured creditors of the petitioner company, to consider and, if thought
fit, approve, with or without modification, the proposed Scheme of
Arrangement.
10. The petitioner company has thereafter filed the present petition
seeking sanction of the Scheme of Arrangement. Vide order dated 31st
August, 2015, notice in the petition was directed to be issued to the
Regional Director, Northern Region, and the Official Liquidator. Citations
were also directed to be published in 'Statesman' (English) and 'Dainik
Jagran' (Hindi) editions. Affidavit of service has been filed by the
petitioner showing compliance regarding service on the Official Liquidator
and the Regional Director, Northern Region and also regarding
publication of citations in the aforesaid newspapers on 12th October,
2015. Copies of the newspaper clippings containing the publications have
been filed along with the said affidavit.
11. Pursuant to the notices issued, the Official Liquidator sought
information from the petitioner companies. Based on the information
received, the Official Liquidator has filed a report dated 8th February,
2016 wherein he has stated that the Scheme involves reorganization of
share capital, whereby no company will get dissolved and that the
Scheme of Arrangement is not prejudicial to the interest of either of the
company or its shareholders and creditors in any manner and therefore,
the Official Liquidator does not have any objection.
12. In response to the notices issued in the petition, Mr. A. K.
Chaturvedi, Regional Director, Northern Region, Ministry of Corporate
Affairs has filed his report dated 22nd February, 2016 not raising any
objection to the proposed Scheme.
13. On 21st April, 2016 learned counsel for the petitioner has pointed
out that a typographical error has crept in the Scheme and that he shall
be filing the corrected copy of the Scheme. The petitioner company along
with the affidavit dated 27th April, 2016 of Mr. Mahesh Mansukhani,
Managing Director of the petitioner company has placed on record the
amended Scheme of Arrangement. However, on 26th May, 2016, learned
counsel prayed and was granted permission to file further affidavit
clarifying all doubts in respect of the working of paragraphs 2.1.1 and 5.1
of the amended Scheme. Thereafter, the petitioner company has placed
on record an affidavit dated 30th June, 2016 of Mr. Mahesh Mansukhani,
Managing Director of the petitioner company clarifying the method in
which the share capital of the company will be reduced. Along with the
said affidavit, the petitioner has also placed on record a copy of the
Scheme, which was further revised to provide further clarity in the
language used in para 2.1.1 of the amended Scheme.
14. No objection has been received to the Scheme of Arrangement
from any other party. Learned counsel for the petitioner has submitted
that the petitioner company has not received any objection pursuant to
the citations published in the newspapers on 12th October, 2015.
15. Considering the approval accorded by the equity shareholders and
creditors of the petitioner companies to the proposed Scheme of
Arrangement and the affidavits filed by the Regional Director, Northern
Region, and the Official Liquidator not raising any objection to the
proposed Scheme of Arrangement, there appears to be no impediment to
the grant of sanction to the amended Scheme of Arrangement.
Consequently, sanction is hereby granted to the amended Scheme of
Arrangement, annexed with the affidavit dated 30th June, 2016, under
Sections 391 and 394 read with Sections 100 to 104 of the Companies
Act, 1956. The petitioner companies will comply with the statutory
requirements in accordance with law. Certified copy of this order be filed
with the Registrar of Companies within 30 days. It is also clarified that
this order will not be construed as an order granting exemption from
payment of stamp duty as payable in accordance with law.
16. The petition is allowed in the above terms.
Dasti.
SUDERSHAN KUMAR MISRA, J.
August 29, 2016
