Delhi High Court
Augere Wireless Broadband India ... vs ... on 30 May, 2016
IN THE HIGH COURT OF DELHI
COMPANY APPLICATION (MAIN) NO. 60/2016
Reserved on 25th April, 2016
Date of pronouncement: 30th May, 2016
In the matter of
The Companies Act, 1956 & the Companies Act, 2013 (to the extent
applicable):
And
Application under Section 391 of the
Companies Act, 1956 read with Rule 9 of the
Companies (Court) Rules, 1959
Scheme of Amalgamation of:
Augere Wireless Broadband India Private Limited
Applicant/Transferor Company
WITH
Bharti Airtel Limited
Applicant/Transferee Company
Through Mr. Manu Krishnan and
Mr.Kawaljeet Singh, Advocates for the
applicants
SUDERSHAN KUMAR MISRA, J.
1. This joint application has been filed under Section 391 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, secured and unsecured creditors to consider and approve,
with or without modification, the proposed Scheme of Amalgamation of
Augere Wireless Broadband India Private Limited (hereinafter referred to
as the transferor company) with Bharti Airtel 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 25th August, 2010 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 7th July, 1995 with the Registrar of Companies,
NCT of Delhi & Haryana at New Delhi under the name and style of Bharti
Tele-Ventures Limited. The company changed its name to Bharti Airtel
Limited and obtained the fresh certificate of incorporation on 24th April,
2006.
5. The present authorized share capital of the transferor company is
Rs.2,50,00,00,000/- divided into 25,00,00,000 equity shares of Rs.10/-
each. The issued, subscribed and paid-up share capital of the company
is Rs.1,96,15,380/- divided into 19,61,538 equity shares of Rs.10/- each.
6. The present authorized share capital of the transferee company is
Rs.25,00,00,00,000/- divided into 5,00,00,00,000 equity shares of Rs.5/-
each. The issued, subscribed and paid-up share capital of the company
is Rs.19,98,70,00,510/- divided into 3,99,74,00,102 equity shares of
Rs.5/- each.
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 27th December, 2015 of the transferor
company and as on 31st March, 2015 of the transferee company, 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 and the proposed amalgamation
will result in pooling of resources, creating better synergies across the
group, optimal utilization of resources and greater economies of scale. It
is claimed that the proposed Scheme will result in faster and effective
decision making, better administration and cost reduction.
9. So far as the share exchange ratio is concerned, the Scheme
provides that, upon coming into effect of this Scheme, no consideration
shall be payable by the transferee company for the equity shares of the
transferor company, since the transferor company is the wholly owned
subsidiary of the transferee company.
10. It has been submitted by the applicants that no proceedings under
Sections 235 to 250A of the Companies Act, 1956 or the applicable
provisions 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 18th January, 2016 and 27th October,
2015 respectively 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 02 equity shareholders; 01 secured
creditor and 08 unsecured creditors. Both the equity shareholders, the
sole secured creditor and 05 out of 08 unsecured creditors, being 62.5%
in number and 99.99% 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, secured 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.
13. So far as the equity shareholders, secured and unsecured
creditors of the transferee company are concerned, the transferee
company has not provided the list of its equity shareholders, secured and
unsecured creditors. However, it was pleaded by learned counsel for the
applicants that since the transferor company is a wholly owned
subsidiary 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
equity shareholders, secured and unsecured 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 for the financial year
ended 31st March, 2015, the transferee company had a profit of
Rs.13,200/- crores. Learned counsel also placed on record a certificate
dated 30th March, 2016 of VD & Co., Chartered Accountants certifying
that the pre and post amalgamation net worth of the transferee company
will remain the same viz. Rs.80,965/- crores. Learned counsel for the
applicants therefore seeks dispensation of the meetings of the equity
shareholders, secured and unsecured creditors of the transferee
company. He further seeks to dispense with the requirement of the
transferee company to file the second motion petition seeking sanction of
the Scheme.
14. In support of his submissions, learned counsel placed reliance on
the judgments of several High Courts, including this Court, in many cases
such as Sharat Hardware Industries Pvt. Ltd. (1978), 48 Com. Cas 23
(Delhi); Mahaamba Investments Ltd. V. IDI Limited (2001) 105 Com
Cas. 16 (Bom.); C.L. Media Private Limited Company & C.L. Educate
Limited Company (Company Petition No. 74/2014 decided by this Court
on 2nd May, 2014) and Bharti Infotel Private Limited (CA(M) 152/2015),
wherein it has been held that since the transferor company is a wholly
owned subsidiary of the transferee company, there is no requirement to
file a separate or joint application on behalf of the transferee company for
sanction of the Scheme.
15. I have carefully considered the aforesaid case law 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 shareholders,
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. Further, the requirement of
the transferee company to file the second motion petition for sanction of
the Scheme of Amalgamation is also dispensed with.
16. The application stands allowed in the aforesaid terms.
Dasti
SUDERSHAN KUMAR MISRA, J.
May 30, 2016
