Delhi High Court
Supertech Precast Technologies ... vs -- on 19 February, 2016
$~ 49
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.APPL.(M) 29/2016
IN THE MATTER OF
SUPERTECH PRECAST TECHNOLOGIES PRIVATE LIMITED
.... Applicant / Transferor Company
WITH
SUPERTECH TOWNSHIP PROJECT LIMITED
.... Non- Applicant /Transferee
Company
Through: Mr. Harshit Agarwal and
Mr. Gursat Singh, Advocates
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 19.02.2016
1. This is a first motion application filed by Supertech Precast
Technologies Private Limited (applicant /transferor company)(hereafter
referred to as the transferor company) under section 391 to 394 of the
Companies Act, 1956(in short the Act) for approval of the scheme of
amalgamation (hereafter referred to as the scheme) with Supertech
Township Project Limited (non-applicant / transferee company)
(hereinafter referred to as the transferee company). A copy of the scheme
is enclosed with the application.
1.2 The registered office of the transferor company as also the transferee
company are located in Delhi and, therefore, within the territorial
jurisdiction of this Court.
2. The transferor company was incorporated on 26.11.2010 under the
name and style: Supertech NorthEye Infra Private Limited, in consonance
with the provisions of the Act. Thereupon, the name of the transferor
company was changed to its present name viz., Supertech Precast
Technologies Private Limited, on 12.01.2011.
2.1 The details with respect to the authorized, issued, subscribed and
paid-up capital of the transferor company are set out in paragraph 1.2.i of
the scheme.
2.2 Copies of Memorandum and Articles of Association as well as the
latest audited annual accounts as on 31.03.2015 have been filed by the
transferor company.
3. The scheme has been approved by the Board of Directors (BOD) of
the transferor company as also the transferee company. Copies of BOD
resolution of even date i.e. 28.11.2015 of the transferor company as well as
the transferee company have been filed.
4. The transferor company avers that there that there are no proceedings
pending against it, under Sections 235 to 251 of the Act, as on date.
5. The position with regard to equity shareholders, secured and
unsecured creditors of the transferor company, is as follows:
Company No. of Conse No. of Consent No. of Consent
Shareholders nt Secured given Unsecured given
given Creditor Creditors
s
Company (79.10%
in
number
and 98%
in value)
6. As would be evident upon reading of the aforementioned table, it is
clear that consents have been obtained from the shareholders, and the only
secured creditor of the transferor company.
7. In so far as the unsecured creditors of the transferor company are
concerned, 106 out of 134 have given their consent. The percentage of
consents in terms of value and number is as follows : 98% in value and
79.10% in number.
8. Accordingly, the prayer made for dispensing with the requirement of
convening meetings of the shareholders and creditors (i.e. secured and
unsecured) of the transferor company is allowed.
9. It is prayed, that the transferee company be exempted from filing any
application or petition and / or to seek any consequential direction(s) from
this Court for dispensing with the requirement of holding meetings of its
shareholders and creditors to consider the scheme, given the fact, that the
transferor company is a wholly owned subsidiary of the transferee
company.
10. Having regard to the fact that the transferor company is a wholly
owned subsidiary company of the transferee company, I am inclined to
agree with the prayer made in this behalf by the transferor company. As
per clause 9 of the scheme, in particular, clause 9.1 and 9.2, upon the
scheme becoming effective, no shares in the transferee company will be
allotted in lieu or in exchange of shares held by it in the transferor
company. The entire share capital of the transferor company shall stand
cancelled. Resultantly, the share certificates and / or the shares held in the
electronic form by the transferee company in the transferor company shall
be deemed to have been cancelled without any further application, act,
instrument or deed of cancellation.
10.1 I am also told by the counsel for the transferor company that the
interest of the creditors in the transferee company shall remain unaltered.
Therefore, in consonance with the aforesaid position obtaining on facts and
in law as is reflected in the judgment dated 16.01.2013 passed in CA
2332/2012 in Co.Appl.(M) No.179/2012, passed in the matter of : eMeter
India Pvt. Ltd., I am inclined to hold that the transferee company need not
file a separate or a joint application (which it has not in the present case)
for obtaining sanction of the scheme.
11. The application stands disposed of, in the aforesaid terms.
12. Dasti.
RAJIV SHAKDHER, J
FEBRUARY 19, 2016
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