Delhi High Court
Idea Mobile Commerce Services ... vs Aditya Birla Idea Payments Bank ... on 3 October, 2016
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 19th September, 2016
Pronounced on: 3rd October, 2016
+ CO.APPL. (M) 129/2016
IN THE MATTER OF:
IDEA MOBILE COMMERCE SERVICES LIMITED
.........Applicant /Transferor Company
AND
ADITYA BIRLA IDEA PAYMENTS BANK LIMITED
........Non-Applicant /Transferee Company
Through: Mr. Rajiv Nayar, Senior
Advocate with Mr. Sandeep Singh,
Adv.,
Mr. Mahesh Agarwal, Adv. & Mr.
Rajeev Kumar, Adv.
CORAM:
HON'BLE MR. JUSTICE R. K. GAUBA
1.
This is a first motion application filed under Sections 391 and
394 of the Companies Act, 1956 read with rules 6 and 9 of the
Companies (Court) Rules, 1959 by the applicant company seeking
directions of this Court to dispense with the requirement of convening
and holding a meeting of the equity shareholders and unsecured
creditors of the Transferor company to consider and approve, with or
without modifications, the proposed Scheme of Amalgamation of Idea
Mobile Commerce Services Limited (hereinafter referred to as the
applicant/Transferor company) with Aditya Birla Idea Payments Bank
Limited (hereinafter referred to as non-applicant/ Transferee company)
and further to dispense with the requirement of the Transferee
Company from approaching this Court or to initiate separate
proceedings under sections 391 and 394 of the Companies Act, 1956
for seeking sanction of the Scheme of Amalgamation.
2. The registered offices of the Transferor Company is situated at
New Delhi, within the jurisdiction of this Court.
3. The Transferor company was originally incorporated under the
Companies Act, 1956 on 19th October, 2007 with the Registrar of
Companies, NCT of Delhi & Haryana at New Delhi under the name
and style of Carlos Towers Limited. Subsequently, the name of the said
company was changed to Idea Mobile Commerce Services Limited and
a fresh Certificate of Incorporation consequent upon change of name
was issued on 4th February, 2011 by the Registrar of Companies, NCT
of Delhi & Haryana at New Delhi.
4. The present authorized share capital of the Transferor 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.90,00,00,000/- divided into 9,00,00,000 equity shares of
Rs.10/- each.
6. The Transferee Company was originally incorporated under the
Companies Act, 1956 on 19th day of February, 2016 with the Registrar
of Companies, Maharashtra under the name and style Aditya Birla Idea
Payments Bank Limited.
7. The copies of the Memorandum and Articles of Association of
the Transferor (Annexure B) and Transferee companies (Annexure O)
have been filed and are on record. The audited balance sheet, as on
31.03.2016 of the Transferor Company (Annexure C) along with the
reports of the auditors and the unaudited balance sheet as on
31.03.2016 and 31.07.2016 of the Transferee company (Annexure
P&Q), have also been filed.
12. A copy of the Scheme of Amalgamation (Annexure A) has been
filed and the salient features thereof set out in detail in the application
and supported by the accompanying affidavit.
13. The status of the shareholders, secured and unsecured creditors
of the Transferor company are declared in the application and
supported by documents filed therewith may be tabulated as under:
Company No. of Consent No. of Consent No. of Consent
Shareholders given to secured given to Unsecured given to
(as per list the Creditors the Scheme creditors The
Vide Scheme With Scheme
Annexure With reference
Mentioned reference To annexure
in the To To petition
Parenthesis) annexure
To
petition
Transferor 07 All Nil NA 345 NIL
Company (Annexure (Annexure (Annexure
F) G) I)
14. As per the valuation report of the Chartered Accountant
(Annexure W) on the issue of the share exchange ratio, the application
states and the Scheme of amalgamation provides that 1,16,522 (One
Lakh Sixteen Thousand Five Hundred and Twenty Two) equity shares
of ABIPBL of Rs.10/- each fully paid up shall be issued for every
1,00,000 (One lakh) equity shares of IMCSL of Rs.10/- each fully paid
up.
15. It has been submitted by the applicants that no investigation
proceedings under Sections 210 to 224 of the Companies Act, 2013
(corresponding to Section 235 to 251 of the Companies Act, 1956) are
pending against the transferor and transferee companies.
16. The Board of Directors of the Transferor Company in their
meetings held on 22.07.2016 had unanimously approved the proposed
Scheme of amalgamation. Copy of the Resolution passed at the
meetings of the Board of Directors of the Transferor Company
(Annexure E) had been placed on record.
17. In view of the written consent/NOC given by all the Equity
Shareholders of the Transferor Company, the requirement of
convening meeting of the Equity Shareholders of the Transferor
Company is dispensed with.
18. The transferor Company has no secured creditors. Hence the
requirement of convening their meeting does not arise.
19. Learned counsel for the Transferor Company submits that the
Transferor Company has 345 Unsecured Creditors as on 31.7.2016
having an outstanding balance of about Rs. 12,43,13,111/-. The said
Unsecured Creditors are mainly trade creditors who are paid off in the
normal course of business. In addition to the aforesaid, there are
further liabilities to the tune of about Rs.15,60,13,464/-, they being the
balance monies out of the monies collected by the Transferor Company
from the customers against issuance of Prepaid Payment Instruments;
the amounts collected from channel partners for issuance of Prepaid
Payment Instruments to the customers; security deposits accepted from
channel partners; and the amounts which are payable by the Transferor
Company to the merchants/aggregators whose services have been
availed of by the customers by using Prepaid Payment Instruments. As
per the guidelines issued by Reserve Bank of India ('RBI'), the
outstanding balance in respect of the said customers are secured by the
Transferor Company by depositing the same in an escrow account with
Kotak Mahindra Bank Limited, Nariman Point, Mumbai Branch. As
on 31.7.2016, an amount of Rs. 10,56,55,409/- was available in the
escrow account against the outstanding liability of the said customers
and merchant establishments which is to the tune of Rs.10,37,46,973/-.
In addition, in terms of the RBI guidelines, a charge of the holders of
the Prepaid Payments Instruments and/or the merchant establishments
stands recorded in favour of Kotak Mahindra Bank Limited with the
Registrar of Companies, Delhi.
20. The copy of the Scheme, as filed reflects that the outstanding
balance in the escrow account along with the charge of Kotak
Mahindra Bank Limited would be transferred to the Transferee
Company upon it (the Scheme) becoming effective. Even otherwise,
the Transferor Company and/or the Transferee Company would be
required to secure the interest of the aforesaid customers/Unsecured
Creditors by complying with the procedure as laid down in the letter
dated 13.6.2016 addressed by RBI to the Transferor Company.
Learned Counsel for the Transferor Company further submits that no
right of the aforesaid customers/or the merchant establishments
including that of Kotak Mahindra Bank Limited (a charge-holder
pursuant to the guidelines issued by RBI) are affected by the present
Scheme. Kotak Mahindra Bank Limited is neither secured nor
unsecured creditor. Balance sheet of the Transferor Company also
does not show Kotak Mahindra Bank as creditor. Hence, neither
consent of nor any meeting with the Kotak Mahindra Bank is required
or to be convened.
21. Learned counsel for the Transferor Company further submits
that under the Scheme no compromise is offered to any of the creditors
of the Transferor Company and neither any liabilities are being
reduced or extinguished. There is no likelihood that any of the
creditors of the Transferor Company would lose or be prejudiced as a
result of the Scheme being sanctioned. There is an excess of assets
over liabilities of about Rs.43.50 crores of the Transferor Company as
on 31.7.2016, this in addition to an excess of assets over liabilities of
about Rs. 3 crores of the Transferee Company as on 31.7.2016.
Further, as on 31.7.2016 besides the amount lying in the aforesaid
escrow account, a sum of about Rs.5.99 crores of the Applicant
Company, as on 31.7.2016, is lying as cash and bank balance. He,
thus, prayed that the meeting of the Unsecured Creditors of the
Transferor Company which also includes the customers of the Prepaid
Payment Instruments may be dispensed with.
22. In support of his submissions, the learned counsel for the
applicant Transferor Company placed reliance on the judgments of this
Court in the matter of In Re: Scheme of Amalgamation of O. C. Denims
& Special Finishes Limited under CA (M) No.86 of 2013 decided on 9 th
July, 2013; Scheme of Amalgamation of Unitel Credit Private Limited
with Intec Capital Limited under C A (M) No.116 of 2010 decided on
4th June, 2010; In Re: Scheme of Amalgamation of M/s Global Digital
Technologies Limited with MVL Industries Limited under CA (M)
No.108/2012 decided on 2nd July, 2012; and In Re: Scheme of
Amalgmation of Mag Engineering Private Limited and Sandhar
Technologies Limited under CA (M) No.19/2013 decided on 4 th
February, 2013 wherein this Court, under similar circumstances, has
dispensed with the requirement of convening and holding the meetings
of the Unsecured Creditors.
23. Having regard to the aforesaid submissions and the documents
filed in support, following the view taken in identical factual matrix in
catena of cases which have been cited at bar, the requirement of
convening and holding the meeting of unsecured creditors of the
Transferor Company which includes the customers of the Prepaid
Payment Instrument is dispensed with.
24. The application stands disposed of in the aforesaid terms.
25. Dasti.
R. K. GAUBA, J.
OCTOBER 03, 2016
