Air Factory Energy Limited vs ...
2016 Latest Caselaw 4623 Del

                     IN THE HIGH COURT OF DELHI
                 COMPANY APPLICATION (MAIN) NO. 67/2016

                                            Reserved on 3rd May, 2016
                                Date of pronouncement: 19th July, 2016
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):

And

Application under Sections 391(1) and 394 of
the Companies Act, 1956 read with Rule 9 of
the Companies (Court) Rules, 1959

Scheme of Amalgamation of:

Air Factory Energy Limited
                                           Applicant/Transferor Company
       WITH

Anest Iwata Motherson Private Limited
                                          Applicant/Transferee Company

                               Through Mr. Manoj Kumar Garg, Mr.R.
                               Kumar, Mr. Prem Mardi, Mr. Narender
                               Singh, Mr. Samar Bansal, Mr. Vinayak
                               Mehrotra and Mr. Kartik Nagarkatti,
                               Advocates for the applicants

SUDERSHAN KUMAR MISRA, J.

1. This joint application has been filed under Sections 391(1) and 394

of the Companies Act, 1956 read with Rule 9 of the Companies (Court)

Rules, 1959 by the applicant companies seeking directions of this court

to dispense with the requirement of convening the meetings of their

equity shareholders, preference shareholders, secured and unsecured

creditors to consider and approve, with or without modification, the

proposed Scheme of Amalgamation of Air Factory Energy Limited

(hereinafter referred to as the transferor company) with Anest Iwata

Motherson Private 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 incorporated under the Companies

Act, 1956 on 12th November, 2007 with the Registrar of Companies, NCT

of Delhi & Haryana at New Delhi.

4. The transferee company was originally incorporated under the

Companies Act, 1956 on 5th December, 2000 with the Registrar of

Companies, NCT of Delhi & Haryana at New Delhi under the name and

style of Anest Iwata Motherson Private Limited. The company changed

its name to Anest Iwata Motherson Limited and obtained the fresh

certificate of incorporation on 1st June, 2001. The company again

changed its name to Anest Iwata Motherson Private Limited and obtained

the fresh certificate of incorporation on 31st March, 2015.

5. The present authorized share capital of the transferor company is

Rs.1,00,00,000/- divided into 10,00,000 equity shares of Rs.10/- each.

The issued, subscribed and paid-up share capital of the company is

Rs.80,00,000/- divided into 8,00,000 equity shares of Rs.10/- each.

6. The present authorized share capital of the transferee company is

Rs.45,00,00,000/- divided into 4,20,00,000 equity shares of Rs.10/- each

aggregating Rs.42,00,00,000/- and 30,00,000 preference shares of

Rs.10/- each aggregating to Rs.3,00,00,000/-. The issued, subscribed

and paid-up share capital of the company is Rs.43,50,00,000/- divided

into 4,05,00,000 equity shares of Rs.10/- each aggregating

Rs.40,50,00,000/- and 30,00,000 preference shares of Rs.10/- each

aggregating to Rs.3,00,00,000/-.

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, of the transferor and

transferee companies, along with the report of the auditors, 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 the transferor company is a wholly owned

subsidiary of the transferee company. It is claimed that the proposed

amalgamation will give the consolidated company better finances,

facilitate adequate resource mobilization to sustain growth, enable better

leverages of facilities, infrastructure and human resources for better

administration. It is further claimed that the proposed amalgamation will

result in reduction in overheads, administrative, managerial and other

expenditure and bring about operational rationalization, organizational

efficiency, and optimal utilization of various resources.

9. So far as the share exchange ratio is concerned, the Scheme

provides that, upon coming into effect of this Scheme, the transferee

company shall not be required to issue and allot any shares since the

transferor company is a wholly owned subsidiary of the transferee

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 210

to 227 of the Companies Act, 2013 are pending against the applicant

companies.

11. The Board of Directors of the transferor and transferee companies

in their separate meetings held on 7th December, 2015 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 07 equity shareholders and 37

unsecured creditors. All the equity shareholders and 02 out of 37

unsecured creditors, being 5.4% in number and 89% in value, 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 September, 2015.

13. The transferee company has 02 equity shareholders, 02

preference shareholders and 250 unsecured creditors. Both the equity

shareholders, both the preference shareholders and 79 out of 250

unsecured creditors, being 31.6% in number and 91% in value, 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,

preference shareholders 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.

There is no secured creditor of the transferee company, as on 30th

September, 2015.

14. The application stands allowed in the aforesaid terms.

Dasti

SUDERSHAN KUMAR MISRA, J.

July 19, 2016