Rrj Infrastructure Company ... vs ...
2016 Latest Caselaw 3619 Del

                     IN THE HIGH COURT OF DELHI
                 COMPANY APPLICATION (MAIN) NO. 46/2016

                                          Reserved on 19th April, 2016
                               Date of pronouncement: 16th May, 2016
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):

And

Application under Sections 391(1) of the
Companies Act, 1956

Scheme of Amalgamation of:

RRJ Infrastructure Company Private Limited
                                   Applicant/Transferor Company No. 1

Fountain Beverages Private Limited
                                     Applicant/Transferor Company No. 2
       WITH

Pearl Drinks Limited
                                          Applicant/Transferee Company

                               Through    Mr.     Mukesh         Sukhija,
                               Advocate for the applicants

SUDERSHAN KUMAR MISRA, J.

1. This joint Application has been filed under Section 391(1) of the

Companies Act, 1956, 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 RRJ Infrastructure Company

Private Limited (hereinafter referred to as the transferor company No. 1)

and Fountain Beverages Private Limited (hereinafter referred to as the

transferor company No. 2) with Pearl Drinks 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 no. 1 was originally incorporated under

the Companies Act, 1956 on 24th June, 2004 with the Registrar of

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

style of RRJ Electrical Company Private Limited. The company changed

its name to RRJ Infrastructure Company Private Limited and obtained the

fresh certificate of incorporation on 1st June, 2007.

4. The transferor company no. 2 was originally incorporated under

the Companies Act, 1956 on 23rd December, 1988 with the Registrar of

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

style of Deepak and Company Private Limited. The company changed its

name to Fountain Beverages Private Limited and obtained the fresh

certificate of incorporation on 29th May, 2000.

5. The transferee company was incorporated under the Companies

Act, 1956 on 10th November, 1982 with the Registrar of Companies, NCT

of Delhi & Haryana at New Delhi.

6. The present authorized share capital of the transferor company

no.1 is Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each.

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

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

7. The present authorized share capital of the transferor company

no.2 is Rs.25,00,000/- divided into 25,000 equity shares of Rs.100/-

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

is Rs.7,00,000/- divided into 7,000 equity shares of Rs.100/- each.

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

Rs.71,00,00,000/- divided into 21,50,000 equity shares of Rs.10/- each

aggregating Rs.2,15,00,000/- and 6,88,50,000 redeemable preference

shares of Rs.10/- each aggregating Rs.68,85,00,000/-. The issued,

subscribed and paid-up share capital of the company is Rs.2,16,80,700/-

divided into 3,40,000 equity shares of Rs.10/- each aggregating

Rs.34,00,000/- and 18,28,070 redeemable preference shares of Rs.10/-

each aggregating Rs.1,82,80,700/-.

9. Copies of 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.

10. 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 companies are wholly owned

subsidiaries of the transferee company and the proposed amalgamation

would result in business synergy and consolidation of these companies

into one large company with a stronger asset base. It is further claimed

that the proposed amalgamation will result in usual economies of a

centralized and a large company including elimination of duplicate work,

reduction in overheads, better and more productive utilization of human

and other resource and enhancement of overall business efficiency. It

will enable these Companies to combine their managerial and operating

strength, to build a wider capital and financial base and to promote and

secure overall growth of their businesses.

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

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

transferor companies are wholly owned subsidiaries of the transferee

company, the investment in the shares of the transferor companies by

the transferee company stall stand cancelled and no shares shall be

issued or allotted to the shareholders of the transferor companies.

12. It has been submitted by the applicants that no proceedings under

Sections 235 to 251 of the Companies Act, 1956 are pending against the

applicant companies.

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

in their separate meetings held on 10th February, 2016 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.

14. The transferor company no. 1 has 02 equity shareholders and 04

unsecured creditors. Both the equity shareholders and 03 out of 04

unsecured creditors, being 75% in number and 98.06% 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 no. 1 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 no. 1, as on 10th February, 2016.

15. The transferor company no. 2 has 02 equity shareholders. Both

the equity shareholders 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 meeting of the

equity shareholders of the transferor company no. 2 to consider and, if

thought fit, approve, with or without modification, the proposed Scheme

of Amalgamation is dispensed with. There is no secured or unsecured

creditor of the transferor company no. 2, as on 10th February, 2016.

16. The transferee company has 08 equity shareholders, 01

preference shareholder, 06 secured creditors and 13 unsecured creditors

but their consents are not placed on record. Learned counsel for the

applicants has submitted that since the transferor companies are wholly

owned subsidiaries of the transferee company; the applicant companies

are not proposing any arrangement with their shareholders and creditors;

and no new shares will be issued on amalgamation, therefore, the rights

of the shareholders and creditors of the transferee company will not be

affected. Hence, their consents/NOC are not required to be obtained for

the proposed amalgamation. It is further submitted by learned counsel for

the applicants that, post amalgamation, the transferee company shall

continue to exist and carry on its commercial activities and since it is

consistently a profit making company having huge reserve of

Rs.79,89,36,494/- and cash reserves of Rs.57,22,801/-, as on 31st

March, 2015, it will continue to pay its creditors and other liabilities in the

normal course of its business.

17. In support of his submissions, learned counsel placed reliance on

the judgments of various High Courts in the matters of Liberty Retail

Revolutions Limited & Anr. [CP 153/2013, Punjab & Haryana High

Court], Punjab Chemicals and Crop Protection Ltd. (2008), 84 CLA 33

(P&H) and Sava Health Care Limited (CP Nos. 63, 64 & 65/2014,

Gujarat High Court), wherein the courts, under similar circumstances,

had dispensed with the requirement of convening the meetings of the

shareholders and creditors of the transferee company.

18. I have carefully considered the aforesaid case laws cited at the

Bar. In view of the submissions made at the bar, the settled law on the

subject, and considering the Scheme of Amalgamation, the requirement

of convening and holding the meetings of the equity shareholder,

preference shareholder, secured 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.

19. The Application stands allowed in the aforesaid terms.

Dasti

SUDERSHAN KUMAR MISRA, J.

May 16, 2016