Delhi High Court
Nalian Engineers Private Limited vs -- on 25 February, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.APPL. (M) 175/2015
IN THE MATTER OF
NALIAN ENGINEERS PRIVATE LIMITED
.... Applicant No.1/ Transferor Company
WITH
SUNRAYS ENGINEERS PRIVATE LIMITED
.... Applicant No.2/Transferee Company
Through: Mr Dilip Singh, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 25.02.2016
1. This is a first motion (joint) application filed by Nalian Engineers Private
Limited (applicant no.1/transferor company) with Sunrays Engineers Private
Limited (applicant no.2/transferee company) (hereafter collectively referred to as
the applicants) 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).A copy of the scheme is enclosed with the application.
2. The registered office of the applicants are located in Delhi and, therefore,
within the territorial jurisdiction of this Court.
3. The details with respect to the incorporation and the applicants'
authorized, issued, subscribed and paid-up capital are set out in paragraphs 2 and
6 of the affidavits filed in support of Judge's summons.
4. 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 applicants.
5. The scheme has been approved by the Board of Directors (BOD) of the
applicants. Copies of the BOD resolutions of even date i.e. 05.10.2015 are filed
with the application.
6. The applicants aver that there that there are no proceedings pending
against them, under Sections 235 to 251 of the Act.
7. The position with regard to equity shareholders and creditors (i.e. secured
and unsecured) of the applicants, as averred by them, is as follows:
Company No. of Consent NO. of Consent No. of Consent No. of Consent
equity given preference Given Secured given Unsecured given
Shareh shareholder Creditors Creditors
olders s
Transferor 02 ALL Nil N.A. 01 ALL NIL N.A
Company
Transferee 04 ALL 02 All 06 5 03 ALL
Company
8. As would be evident upon reading of the aforementioned table, it is clear
that in so far as the transferor company is concerned, consents have been
obtained from its shareholders (i.e. equity) and creditor (i.e. secured).
9. In so far as the transferee company is concerned, all the shareholders (i.e.
equity and preference) and unsecured creditors have given their consent.
9.1 As regards the secured creditors of the transferee company, the applicants
aver, five (5) out of six (6) have given their consent. A scrutiny of documents
filed with the joint application reveals that two (2) secured creditors have given
their consent prior to the scheme being sanctioned by the transferee company.
Notwithstanding the said discrepancy, the percentage of consent given, in terms
of value and number is as follows: 88.70% in value and 50% in number.
10. In these circumstances, in so far as the shareholders (i.e. equity) and
creditors (i.e. secured) of the transferor company are concerned, the requirement
to convene their meetings is dispensed with.
11. Similarly, the prayer made for dispensing with the requirement of
convening meetings of the shareholders (i.e. equity and preference) and
unsecured and secured creditors of the transferee company is also allowed. The
reason for allowing the prayer made for dispensation with the requirement of
convening meeting of the secured creditors of the transferee company, is that,
the percentage of consent given, in value, in this case, is above 75%.
12. The joint application stands disposed of in the aforesaid terms.
13. Dasti.
RAJIV SHAKDHER, J
FEBRUARY 25, 2016
