Delhi High Court
Su Estates Pvt Ltd vs Sunsine Realbuild Pvt Ltd on 26 October, 2016
IN THE HIGH COURT OF DELHI AT NEW DELHI
CO.APPL. (M) 155/2016
IN THE MATTER OF:
SU ESTATES PVT LTD
.......APPLICANT/TRANSFEROR COMPANY
AND
IREO PVT LTD
........APPLICANT/TRANSFEREE COMPANY
AND
SUNSINE REALBUILD PVT LTD
.........APPLICANT/RESULTING COMPANY
Through: Mr Rajeev K Goel Advocate
for the Applicants.
CORAM:
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
ORDER
26.10.2016
1. The present is a first motion application filed jointly, under Sections 391
& 394, 100 to 104 of the Companies Act, 1956, in connection with the
Composite Scheme of Arrangement for (a) Amalgamation of Su Estates Pvt Ltd
(hereinafter referred to as 'Transferor Company) with Ireo Pvt Ltd (hereinafter
referred to as 'Transferee Company'); and (b) De-merger of Demerged
Undertaking of Ireo Pvt Ltd into, Sunsine Realbuild Pvt Ltd (hereinafter
referred to as 'Resulting Company').
2. The Transferor Company, Transferee Company and Resulting Company
are hereinafter collectively referred to as 'Applicant Companies'.
3. The registered offices of the Applicant Companies are situated at New
Delhi, within the jurisdiction of this Court.
4. The Transferor Company was incorporated on 13.02.2006 under the
Companies Act, 1956, with the ROC, Delhi and Haryana.
5. The Transferee Company was incorporated on 15.03.2004, under the
Companies Act, 1956 with the ROC, Delhi and Haryana.
6. The Resulting Company was incorporated on 27.04.2009, under the
Companies Act, 1956 with the ROC, Delhi and Haryana.
7. The authorized share capital of the Transferor Company, as on
31.03.2016, is Rs.1,00,000/-, divided into 10,000 Equity Shares of Rs.10/- each
and the Issued, Subscribed and Paid-Up Share Capital of the Transferor
Company as on 31.03.2016, is Rs.1,00,00/-, divided into 10,000 Equity Shares
of Rs.10/- each.
8. The Authorized Share Capital of the Transferee Company as on
31.03.2016, is Rs.23,75,00,00,000/- divided into 1,12,50,00,000 equity shares of
Rs.10/- each and 1,25,00,00,000 1% non-cumulative redeemable preference
shares of Rs.10/- each and the Issued, Subscribed and Paid-Up Share Capital of
the Transferee Company as on 31.03.2016 is Rs.11,46,62,27,740/- divided into
35,32,51,524 equity shares of Rs.10/- each and 79,33,71,250 1% non-
cumulative redeemable preference shares of Rs.10/- each.
9. The Authorized Share Capital of the Resulting Company as on
31.03.2016, is Rs. 1,00,000/- divided into 10,000 equity shares of Rs.10/- each
and the Issued, Subscribed and Paid-Up Share Capital of the Transferee
Company as on 31.03.2016 is Rs. 1,00,000/- divided into 10,000 equity shares
of Rs.10/- each.
10. Copies of the Memorandum of Association and Articles of Association of
the Applicant Companies have been filed and the same are on record. The
audited balance sheets, as at 31st March, 2016 of the Applicant Companies,
along with the report of the auditors and report of directors have also been filed
and the same are on record.
11. It has been submitted on behalf of the Applicant Companies that no
proceedings under Sections 235 to 251 of the Act or under corresponding
provisions of the Companies Act, 2013 are pending against the Applicant
Companies as on the date of filing of the present application.
12. A copy of the proposed Scheme has been filed on record and the salient
features of the Scheme have been incorporated and detailed in the application
and the accompanying affidavits.
13. The proposed Scheme has been approved by the Board of Directors
(hereinafter referred to as 'BOD') of the Applicant Companies in their separate
meetings held on 12.09.2016. Copies of the Resolutions passed at the meetings
of the Board of Directors of the Applicant Companies have been placed on
record.
14. It has been submitted that the Applicant Companies are closely held
private limited companies. Status of Equity Shareholders, Preference
Shareholders, Debenture Holders, Secured Creditors and Un-secured Creditors
of the Applicant Companies and written consents/NOC obtained for the
proposed Scheme is summarized in following table:
15.
Company No. of Consent No. of Consent No. of Consent
Share Given Secured Given Un-secured Given
holders/ Creditor Creditors1
Debenture s
holders
Transferor 2 All Nil N.A. 4 All
Company Equity
Shareholders
Transferee 3 All 8 All 231 All
Company Equity
Shareholders
2 All
Preference
Shareholders
2 All
Debenture
holders
Resulting 2 All Nil N.A. 1 All
Company Equity
shareholders
16. It has been submitted that in addition to the aforesaid Unsecured
Creditors (Trade Creditors), as on 31st August, 2016, the Transferee Company
has some 'statutory dues and other specified liability items', status of which has
been summarized in the following table:
Sl. Particulars Amount (₹) Remark
No.
1. Works Contracts Tax (WCT) 45,78,368 Paid in full
2. Service tax 16,73,334 Paid in full
3. Income tax 61,33,159 Paid in full
4. Payment to be made to Haryana 61,84,915 Paid in full
Building and Other Construction
Workers' Welfare Board
5. Provision for leave encashment/ 5,36,25,749 Not due for
compensated absences payment
6. Provision for gratuity 6,77,29,119 Not due for
payment
7. Advance received from customers 532,05,65,771 Not due for
against confirmed bookings in payment
various real estate projects of the
company, to be adjusted against
balance payment to be made by
such customers at the time taking
possession
8. Refundable security deposits 202,75,00,000 Not due for
received from joint development payment
partners, which will be repaid/
refunded and/ or adjusted as per
terms of joint development
agreement
9. Retention money of contractors, 25,53,16,325 Not due for
which will be paid on expiry of payment
agreed period as per the terms of
the contracts
10. Payment to be made to Director 47,38,79,542 Not due for
General of Town & Country payment
Planning/ Chief Administrator of
Haryana Urban Development
Authority in future under Deferred
Payment Plan
11. Labour Welfare Fund 13, 362 Not due for
payment
The Transferee Company has made full and final payment of these statutory
dues (at serial 1, 2, 3 & 4 above) since then.
The Transferee Company has made these provisions (at serial 5 & 6 above) in
its books of accounts in terms of the applicable laws and accounting standards.
However, the same are not due for payment as on the date of this certificate.
Advances received from customers against confirmed bookings in various real
estate projects of the Transferee Company will be adjusted against the final
payment to be made by such customers at the time of taking possession. The
same are recorded as liabilities as per relevant Accounting Standards and
Generally Accepted Accounting Principles. Similarly, the refundable security
deposits received from joint development partners for various real estate
projects of the Transferee Company will be, refunded or repaid and/ or
adjusted as per the terms of the joint development agreements. It is most
respectfully submitted that consents from the parties towards these advances
and refundable security deposits (at serial 7 & 8 above) are not required in
view of the fact that these advances/ refundable security deposits are not due
for payment by the Company as on the date of this certificate.
Retention money will be paid on expiry of agreed period as per the terms of
the contracts with the respective contractors. It is most respectfully submitted
that consents from the parties towards the retention money are not required in
view of the fact that these retention money is not due for payment by the
Company as on the date of this certificate.
The Transferee Company is required to make these payments in future to the
Director General Town & Country Planning/ Chief Administrator, Haryana
Urban Development Authority under Deferred Payment Plan, towards
internal/external development and other charges, which are currently not due
for payment. It is most respectfully submitted that consents from the parties
towards these charges (at serial 10 above) are not required in view of the fact
that these charges are not due for payment by the Company as on the date of
this certificate.
The Transferee Company is required to make payment of such contributions to
the appropriate governmental authority, on a quarterly basis, and the amount
outstanding is currently not due for payment. It is most respectfully submitted
that consents from the concerned party towards these charges (at serial 11
above) are not required in view of the fact that these charges are not due for
payment by the Transferee Company as on the date of this certificate.
17. A prayer has been sought for dispensation of the requirement of
convening meetings of Equity Shareholders and Unsecured Creditors of the
Transferor Company; of Equity Shareholders and Unsecured Creditors of the
Resulting Company; and of Equity Shareholders, Preference Shareholders,
Debenture holders, Secured Creditors and Unsecured Creditors of the
Transferee Company.
18. The Transferor Company has 02 Equity Shareholders and 04 unsecured
creditors. Their written consents/no objections to the proposed Scheme have
been obtained and placed on record. The same have been examined and found
in order.
19. In view of the foregoing, the requirement of convening the meeting of the
equity shareholders and unsecured creditors of the Transferor Company to
consider and, if thought fit, approve with or without modification, the proposed
Scheme is dispensed with.
20. Since there are no secured creditors of the Transferor Company, therefore
the question of dispensing with the requirement of convening a meeting or
convening a meeting for the secured creditors does not arise.
21. The Transferee Company has 03 equity shareholders, 02 preference
shareholders, 02 Debenture holders, 08 Secured creditors and 231 unsecured
creditors. Their consents/no objections in writing to the proposed Scheme have
been obtained and placed on record. The same have been examined and found
in order.
22. In view the foregoing, the requirement of convening meeting of the
equity shareholders, preference shareholders, debenture holders, secured
creditors and unsecured creditors of the Transferee Company to consider and, if
thought fit, approve, with or without modification the proposed Scheme is
dispensed with.
23. The Resulting Company has 02 Equity Shareholders and 01 unsecured
creditor. Their written consents/no objections to the proposed Scheme have
been obtained and placed on record. The same have been examined and found
in order.
24. In view of the foregoing, the requirement of convening the meeting of the
equity shareholders and unsecured creditors of the Resulting Company to
consider and, if thought fit, approve with or without modification, the proposed
Scheme is dispensed with.
25. Since there are no secured creditors of the Resulting Company, therefore
the question of dispensing with the requirement of convening a meeting or
convening a meeting for the secured creditors does not arise.
26. The application stands allowed in the aforesaid terms and is disposed of
accordingly.
SIDDHARTH MRIDUL, J
OCTOBER 26, 2016
r/mk
