Nxp Semiconductors India Private ... vs ...
2016 Latest Caselaw 4125 Del

                     IN THE HIGH COURT OF DELHI
                 COMPANY APPLICATION (MAIN) NO. 61/2016

                                          Reserved on 18th May, 2016
                               Date of pronouncement: 30th May, 2015
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:

NXP Semiconductors India Private Limited
                                   Non-Applicant/Transferor Company
     WITH

Freescale Semiconductor India Private Limited
                                         Applicant/Transferee Company

                               Through Mr. Rajeev Kumar with
                               Ms.Alka Srivastava and Mr. Ajeet
                               Singh, Advocates for the applicant

SUDERSHAN KUMAR MISRA, J.

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

Companies Act, 1956, by the applicant/transferee company seeking

directions of this court to dispense with the requirement of convening the

meetings of its equity shareholders, secured and unsecured creditors to

consider and approve with or without modification, the proposed Scheme

of Amalgamation of NXP Semiconductors India Private Limited

(hereinafter referred to as the transferor company) with Freescale

Semiconductor India Private Limited (hereinafter referred to as the

applicant/transferee company) .

2. The registered office of the applicant/transferee company is

situated at New Delhi, within the jurisdiction of this Court. However, the

registered office of the transferor company is situated at Karnataka,

outside the jurisdiction of this Court. Learned counsel for the applicant

submits that a separate application will be filed by the transferor

company before the court of competent jurisdiction for sanction of

Scheme of Amalgamation in respect of the transferor company.

3. The applicant/transferee company was originally incorporated

under the Companies Act, 1956 on 10th February, 2004 with the

Registrar of Companies, NCT of Delhi and Haryana at New Delhi under

the name and style of Zodiac Software Systems Private Limited. The

company changed its name to Freescale Semiconductor India Private

Limited and obtained the fresh certificate of incorporation on 1st April,

2004.

4. The present authorized share capital of the applicant/transferee

company is Rs.1,00,00,00,000/- divided into 10,00,00,000 equity shares

of Rs.10/- each. The issued, subscribed and paid-up share capital of the

company is Rs.87,15,22,010/- divided into 8,71,52,201 equity shares of

Rs.10/- each.

5. Copies of the Memorandum and Articles of Association of the

transferor company and the applicant/transferee company have been

filed on record. The audited balance sheets, as on 31st March, 2015, of

the transferor company and the applicant/transferee company, along with

the report of the auditors, have also been filed.

6. 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 claimed

by the applicants that the proposed amalgamation will achieve greater

integration and greater financial strength and flexibility, to maximize

overall shareholder value and improve the competitive position of the

combined entity. It is further claimed that the proposed amalgamation will

also achieve greater efficiency in cash management and unfettered

access to cash flows generated that could be deployed more efficiently to

fund organic or inorganic growth opportunities.

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

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

applicant/transferee company shall issue and allot equity shares to the

shareholders of the transferor company in the following ratio:-

"5,73,58,998 equity shares of Rs.10/- each of the transferee company for every 25,18,060 equity shares of Rs.50/- each held in the transferor company."

8. It has been submitted by the applicant that no proceedings under

Sections 235 to 251 of the Companies Act, 1956 or under Sections 210

and 214 of the Companies Act, 2013 are pending against the

applicant/transferee company.

9. The Board of Directors of the transfer company and the

applicant/transferee company in their separate meetings held on 18th

March, 2016 and 22nd March, 2016 respectively have unanimously

approved the proposed Scheme of Amalgamation. A copy of the

resolution passed at the meetings of the Board of Directors of the

transferor company and the applicant/transferee company have been

placed on record.

10. The applicant/transferee company 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 applicant/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 applicant/transferee company as on 28th March

2016.

11. The applicant/transferee company has 91 unsecured creditors, as

on 28th March, 2016 whose consents have not been placed on record.

Learned counsel for the applicant seeks dispensation of the meeting of

the unsecured creditors of the applicant/transferee company on the

ground that the Scheme does not entail or involve any arrangement

between the transferee company and its creditors and the rights of the

unsecured creditors will not be adversely affected by the proposed

Scheme. He has further submitted that these creditors are short term

creditors whose debt pertains to the period of less than six months and

they are being paid in the normal course of the business. The applicant

has also placed on record a certificate dated 28th March, 2016 of Alok

Singhal & Co., Chartered Accountants showing that the consolidated net

worth of the transferee company, post amalgamation, will be

Rs.2,25,69,61,930/-. Learned cousnel has further submitted that since

28th March, 2016, the debt of 57% of the unsecured creditors have been

paid amounting to Rs.2,93,59,895/- out of Rs.5,13,54,032/-, which was

outstanding as on 28th March, 2016. A certificate dated 04.05.2016 of

Alok Singhal & Co., Chartered Accountants in this regard has also been

placed on record. The applicant company has also placed on record an

additional affidavit dated 26th May, 2016 of Ms. Sarita Tyagi, Company

Secretary/Authorized Signatory of the transferee company stating that

the debt of 80 unsecured creditors out of 91 unsecured creditors has

been paid in full as on 24th May, 2016 and the debt of 08 unsecured

creditors out of the remaining 11 unsecured creditors has been partly

paid. Therefore, as on 24.05.2016, only a sum of Rs.25,38,226/- remains

to be paid out of the total sum of Rs.5,13,54,032/-. In view of the

aforesaid and the considering the fact that the unsecured creditors of the

applicant/transferee company are short term creditors whose debts are

being paid in the normal course of the business of the company and

considering the Scheme of Amalgamation, the requirement of convening

and holding the meeting of the unsecured creditors of the

applicant/transferee company to consider and, if thought fit, approve, with

or without modification, the proposed Scheme of Amalgamation is

dispensed with.

12. The Application stands allowed in the aforesaid terms.

Dasti

SUDERSHAN KUMAR MISRA, J.

May 30, 2015