Delhi High Court
Nandos Services India Private ... vs Nando’S Karnataka Restaurants ... on 3 October, 2016
$~50
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO. APPL. (M) 139/2016
IN THE MATTER OF:
NANDOS SERVICES INDIA PRIVATE LIMITED
... Applicant No.1/Transferor Company No. 1
AND
JANPATH RESTAURANTS PRIVATE LIMITED
... Applicant No.2/Transferor Company No. 2
AND
NANDO'S KARNATAKA RESTAURANTS PRIVATE LIMITED
... Non-Applicant/Transferee Company
Through: Mr. Dhritiman Bhattacharyya,
Mr. Piyush Sharma &
Ms. Deeti Ojha, Advocates for
the Applicant /Transferor
Companies.
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
ORDER
% 03.10.2016
CO.APPL. 3814/2016 (Delay in re-filing)
The present application under Rule 9 of the Companies (Court) Rules,
1959, seeks condonation of delay in re-filing the accompanying Company
Application.
For the reasons stated in the application the same is allowed. The delay in
re-filing the accompanying Company Application is condoned.
The application is disposed of accordingly.
CO. APPL. (M) 139/2016
1. The present first motion application under sections 391-394 of
the Companies Act, 1956, (for short 'Act') read with Rules 67 to 87 of the
Companies (Court) Rules, 1959, has been filed on behalf of Nandos Services
India Private Limited (Transferor Company No.1) and Janpath Restaurants
Private Limited (Transferor Company No.2), in connection with the Composite
Scheme of Arrangement and Amalgamation (for short 'Scheme') between
Transferor Companies No. 1 to 2 with Nando's Karnataka Restaurants Private
Limited (Non-applicant/Transferee Company).
2. The Transferor companies No. 1 and 2 are hereinafter jointly referred to
as 'Transferor Companies'.
3. The Registered Offices of the Transferor Companies are situated within
the National Capital Territory of Delhi, thus within the jurisdiction of this
Court. The Registered Office of the Transferee Company is situated at
Bangalore, Karnataka, being outside the jurisdiction of this Court.
4. It has been submitted on behalf of the Transferor Companies that an
application for first motion has been filed on behalf of the Transferee Company
before the Karnataka High Court, in accordance with law.
5. A copy of the proposed Scheme has been filed along with the present
application and the same is on record. The rationale for the Scheme is that
synergies arising out of consolidation of respective businesses would lead to
reduction of operating and administrative costs, improvement in profitability,
efficient and effective management of business, pooling of financial resources
for centralised management of funds to supplement future growth opportunities.
6. The details qua the authorized, issued, subscribed and paid-up capital of
the Transferor companies has been set out in paragraph 4 of the Scheme.
7. Transferor Company No.1 was incorporated on 28.01.2016 under the
provisions of the Act. As on 31.03.2015, the authorised share capital of
Transferor Company No.1 is Rs.35,00,000/-, divided into 3,50,000 equity shares
of Rs.10/- each. As on 31.03.2015, the issued, subscribed and paid up share
capital of Transferor Company No.1 is Rs.30,75,000/-, divided into 3,07,500
equity shares of Rs.10/- each.
8. Transferor Company No.2 was incorporated on 14.03.2012 under the
provisions of the Act. As on 31.03.2015, the authorised share capital of
Transferor Company No.2 is Rs.37,00,00,000/-, divided into 3,70,00,000 equity
shares of Rs.10/- each. As on 31.03.2015, the issued, subscribed and paid up
capital of Transferor Company No.2 is Rs.19,96,04,980/-, divided into
1,99,60,498 equity shares of Rs.10/- each.
9. Copies of the Memorandum of Association and Articles of Association
are on record. The latest audited Annual Accounts for the year 31st March, 2015
of the Transferor Companies have been enclosed with the application. Copies of
the latest unaudited provisional financial statements as on 28th June, 2016 of the
Transferor Companies have also been enclosed with the application. The same
are on record.
10. It has been submitted on behalf of the Transferor Companies that no
proceedings under Sections 235 to 251 of the Act are pending against the
Transferor Companies as on the date of institution of the present application.
11. It has been averred that the Scheme has been approved by the respective
Board of Directors (BOD) of the Transferor companies. Copies of the BODs
Resolutions, dated 28.06.2016, of the Transferor companies whereby the
Scheme has been approved, are filed with the application and the same are on
record.
12. The status of the Shareholders, Secured and Unsecured Creditors of
both the Applicant Companies i.e. both the Transferor Companies and the
consents obtained from them for the proposed Scheme has been set out in a
table forming part of the application which reads as hereinunder:-
Company No. of Consent No. of Consent No. of Consent
Shareholder Given Secured Given Unsecured Given
Creditors Creditors
Transferor 2 ALL Nil NA 24 23
Company (being
No.1 96% in
number
and 91%
in value)
Transferor 2 ALL Nil NA 47 42
Company (being
No.2 89% in
number)
85% in
value)
13. A prayer has been sought, in the present application, for dispensing with
the requirement of convening the meetings of the Shareholders and Unsecured
Creditors of the Transferor Companies.
14. The Transferor Companies do not have any secured creditors. Therefore
the requirement of convening the meetings of secured creditors does not arise.
15. In view of the written consents/NOC given by all the Equity Shareholders
of the Transferor Companies, which have been duly placed on record and are
found to be in order, the requirement of convening the meeting of Shareholders
of the Transferor Companies is dispensed with.
16. It has been submitted that requisite number of Unsecured Creditors of
Transferor Company No.1 (being 96% in number and 91% in value) have given
their consents. The consents/NOCs have been duly placed on record and the
same are found to be in order. Consequently, the requirement of convening
meeting of Unsecured Creditors of Transferor Company No.1 is dispensed with.
17. It has further been submitted that requisite number of Unsecured
Creditors of Transferor Company No.2 (being 89% in number and 85% in
value) have given their consents. The consents/NOCs have been duly placed on
record and the same are found in order. Consequently, the requirement of
convening meeting of Unsecured Creditors of Transferor Company No.2 is
dispensed with.
18. The application stands allowed in the aforesaid terms and the same is
disposed of accordingly.
19. A copy of the order be given dasti.
SIDDHARTH MRIDUL, J
OCTOBER 03, 2016
mk
