Delhi High Court
Arya Buildwell Private Limited vs -- on 10 February, 2016
$~32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.APPL.(M) 23/2016
IN THE MATTER OF
ARYA BUILDWELL PRIVATE LIMITED
..... Applicant no. 1/ Transferor Company
No.1
AND
KIWI INFRABUILD PRIVATE LIMITED
..... Applicant no. 2/ Transferor Company
No.2
AND
KAYEM FOOD INDUSTRIES PRIVATE LIMITED
..... Applicant no. 3/ Transferee Company
Through: Mr Mukesh Sukhija, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 10.02.2016
1. This is a first motion (joint) application, which is moved by Arya
Buildwell Private Limited (Applicant no 1/ Transferor Company No.1) Kiwi
Infrabuild Private Limited (Applicant no. 2/ Transferor Company No.2) and
Kayem Food Industries Private Limited (Applicant no. 3/ Transferee
Company) (hereafter collectively referred to as the applicants) under Section
391 to 394 of the Companies Act, 1956 (in short the Act) in connection with
the proposed scheme of amalgamation (hereafter referred to as the scheme).
A copy of the scheme is enclosed with the application.
2. The registered office of the applicants are situate, within the National
Capital Territory of Delhi and, therefore, this court has the necessary
jurisdiction to deal with the matter.
3. The details of the date of incorporation of the applicants, their
authorized, issued, subscribed and paid up capital have been set out in
paragraph 2 of the scheme.
4. The copies of Memorandum and Articles of Association and the latest
audited annual accounts of the applicants dated 31.03.2015 have been filed.
5. The applicants aver that there are no proceedings pending against
them under Section 235 to 251 of the Act as on date.
6. It is further averred that the Board of Directors (BOD) of the
applicants have approved the scheme. Copies of BOD resolution of even
date i.e. 31.03.2015 have been filed.
7. In so far as the consents qua the scheme, which the applicants have
obtained vis-a-vis various class of persons/ entities, the details of the same
are provided in the application. For the sake of convenience, the same are
extracted hereinbelow:
Company No. Of Consent No. Of Consent No. Of Consent
Sharehol given secured given unsecured given
ders creditors creditors
Transferor 12 All Nil N.A. Nil N.A.
Company no. 1
Transferor 12 All Nil N.A. Nil N.A.
Company no.2
Transferee 5 All 5 None 138 79 (57.25%
Company in number
and
(95.39%) in
value
8. In view of what is stated in the captioned application and averments
made before me, it is clear that consents have been obtained from all
shareholders of the applicants.
9. In so far as the unsecured creditors are concerned, the transferee
company has 138 unsecured creditors, out of which 79 have given their
consent. In terms of the value and number, the position with regard to the
consents given is as follows: 95.39% in value and 57.25% in number.
10. Accordingly, prayer made for dispensing with the requirement of
convening meetings of the shareholders of the applicants as also unsecured
creditors of the transferee company is allowed.
11. As regards the secured creditors, the transferee company avers that it
has 5 secured creditors. As on 28.03.2015, the transferee company owes a
sum of Rs.1,68,74,55,816.21 to them. A certificate of the Chartered
Accountant to that effect has been appended to the application.
Accordingly, applicants pray that their meeting be convened.
12. Thus, as prayed, the applicants are directed to convene a meeting of
the secured creditors of the transferee company. The meeting of the secured
creditors of the transferee company shall be held on 26.03.2016 at 3.00 p.m.
onwards, at Mahajan House, E-1, South Extention Part-II, New Delhi - 110
049.
12.1 Ms. Harkiran Kalra, Advocate (Mobile No. 9810093557) is appointed
as a Chairperson and Mr. Ashish Dholakia, Advocate (Mobile
No.9811157597) is appointed as an Alternate Chairperson to convene the
meeting of the secured creditors of the transferee company.
12.2 The quorum with respect to the meeting will be as follows:
Company Secured Creditors
In number In value (%)
12.3 In case the quorum, as mentioned above, with respect to the secured
creditors of the transferee company is not in place, at the designated time
when the meeting is called to order, then, the meeting shall be adjourned by
half-hour, and thereafter, the persons present for voting shall be deemed to
constitute the quorum. For the purposes of computing the quorum, any valid
instrument of proxy filed shall be considered, if filed in the prescribed
format, and is, duly signed by the person entitled to attend the meeting and
furthermore is deposited with the registered office of the transferee
company, at least 48 hours before the meeting so convened. The
Chairperson and/or alternate Chairperson, so appointed, shall ensure that
proxy registers are properly maintained.
13. The Chairperson and/or Alternate Chairperson shall also ensure that
notices for convening the aforementioned meeting of the secured creditors
of the transferee company, along with the scheme, and a statement as
required under Section 393 of the Act is sent to them by ordinary post at
their registered or last known address at least 21 clear days before the date
appointed for the said meeting, in their presence or in the presence of their
authorised representative. The notice with respect to the meeting referred to
above, shall be separately published in the Business Standard (English),
Delhi edition and in the Business Standard (Hindi), Delhi edition in terms of
the Company Court Rules, 1959, at least 21 clear days before the date
appointed for the said meeting.
14. The Chairperson and/or Alternate Chairperson shall be entitled to
issue suitable directions to the management of the transferee company so as
to ensure that the aforementioned meeting is conducted in a just, free and
fair manner. For their efforts, the Chairperson and the Alternate
Chairperson for the meeting will be paid a fee of Rs. 50,000/- each. This
will be in addition to reimbursement of any out of pocket expenses incurred
by them. The reimbursement will be on actual basis. The Chairperson of
the meeting will file her report within two weeks of holding the aforesaid
meeting.
15. The joint application stands allowed in the aforesaid terms.
16. Dasti.
RAJIV SHAKDHER, J
FEBRUARY 10, 2016
kk
