Delhi High Court
Intelligrape Software Private ... vs Tangerine Digital Entertainment ... on 21 September, 2016
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 14th September, 2016
Pronounced on: 21st September, 2016
+ CO.APPL. (M) 128/2016
IN THE MATTER OF:
INTELLIGRAPE SOFTWARE PRIVATE LIMITED
.............Applicant /Transferor Company
AND
TANGERINE DIGITAL ENTERTAINMENT
PRIVATE LIMITED
........Non - Applicant /Transferee Company
Through: Mr. Sanjeev Puri, Senior
Advocate with Mr.
Vikrant Rohilla and
Mr. Akul Mehandru,
Advocates
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 of the Transferor
company and to issue directions for convening and holding a meeting
of the unsecured creditors of the Transferor company to consider and
approve, with or without modifications, the proposed Scheme of
Amalgamation of Intelligrape Software Private Limited (hereinafter
referred to as the applicant/Transferor company) with Tangerine
Digital Entertainment Private 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 and
Transferee Company are situated at New Delhi, within the jurisdiction
of this Court.
3. The Transferor company was incorporated under the Companies
Act, 1956 on 17th June, 2008 (wrongly mentioned in pleadings as
16.04.2008) and registered with the Registrar of Companies, NCT of
Delhi & Haryana at New Delhi. Similarly, the transferee company was
incorporated under the Companies Act, 1956 on 14.07.2006 and
registered with the Registrar of Companies, NCT of Delhi and Haryana
at New Delhi. Details with regard to the incorporation of the transferor
and transferee companies have been stated in the application and the
same are borne out from the documents filed therewith.
4. The present authorized share capital of the Transferor company
is Rs.20,00,000/- divided into 2,00,000 equity shares of Rs.10/- each.
The issued, subscribed and paid-up share capital of the company is
Rs.10,73,550/- divided into 1,07,355 equity shares of Rs.10/-, each
fully paid up. On the other hand, the present authorized share capital of
the transferee company is Rs.11,00,00,000/-.
5. The copies of the Memorandum and Articles of Association of
the Transferor (Annexure D) and Transferee companies (Annexure J)
have been filed and are on record. The audited balance sheets, as on
31st March, 2015 of the Transferor (Annexure E ) and Transferee
companies (Annexure K), along with the reports of the auditors, have
also been filed. The certified copy of provisional unaudited financial
statements of the Transferor (Annexure F) and Transferee companies
(Annexure L) as on 31st March, 2016 are further placed on record
with the application.
6. A copy of the Scheme of Amalgamation (Annexure C) has been
filed and its salient features set out in detail in the application
supported by the accompanying affidavit. It is submitted by the
applicant that implementation of the Scheme will integrate and
consolidate the businesses of the Transferor Company and Transferee
Company into a single entity and consolidate resources and assets of
such companies for optimal deployment and enhanced overall
efficiencies. It is further submitted that the proposed amalgamation
will enable better and efficient management, control and running of the
businesses to attain operational efficiencies, cost competitiveness,
create synergies and capitalize on the growth opportunities to the
fullest possible. Further the applicant submits that the proposed
amalgamation and vesting of the Transferor Company into the
Transferee Company, with effect from the Appointed Date, is in the
interest of the shareholders, creditors, employees and other
stakeholders of these companies, as it would enable a focused business
approach for the maximization of benefits to all stakeholders.
7. The status of the shareholders, secured and unsecured creditors
of the transferor and transferee companies as 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 creditors the
vide scheme scheme (as per list scheme
Annexure with with vide with
mentioned in reference reference Annexure reference
the to to mentioned to
parenthesis) annexure annexure in the annexure
to petition to parenthesis) to
petition petition
Transferor 3 ALL NIL NA 100 -
Company (Annexure J) (Annexure (Annexure
H) I)
Transferee NIL NA NIL NA NIL NA
Company
8. So far as the share exchange ratio is concerned, the application
states and the scheme of amalgamation declares that the Transferor
Company is a wholly owned subsidiary of the Transferee Company
and, therefore, there would be no issue and allotment of any shares as
consideration for the amalgamation. The Transferee Company shall not
receive any payment or other consideration pursuant to the cancellation
of the shares of the Transferor Company. In view thereof, the equity
shares of the Transferor Company held by the Transferee Company
shall stand cancelled without any further application, act or deed.
9. It has been submitted by the applicant that no investigation or
proceedings under Sections 235 to 251 of the Companies Act, 1956 or
corresponding sections of the Companies Act, 2013 are pending
against the Transferor and Transferee companies.
10. The Board of Directors of the Transferor Company and
Transferee Company in their separate meetings held on 14.07.2016
have unanimously approved the proposed Scheme of Amalgamation.
Copies of the Resolutions passed at the meetings of the Board of
Directors of the Transferor Company (Annexure A) and Transferee
Company (Annexure M) have been placed on record.
11. The Transferor company has 03 (three) equity shareholders
(Annexure G). Each of the said three equity shareholders have given
their consents/no objections in writing to the proposed Scheme of
Amalgamation, which documents (Annexure H) have been examined
and found in order. In view thereof, the requirement of convening the
meeting of the equity shareholders of the Transferor Company to
consider and, if thought fit, approve, with or without modification, the
Scheme of Amalgamation is dispensed with.
12. As per the averments on record, there is no secured creditor of
the Transferor Company as on date of application.
13. The Transferor company has 100 (one hundred) unsecured
creditors. A direction is sought to convene and hold their meeting to
seek their approval to the Scheme of Amalgamation. It is directed that
the meeting of the unsecured creditors of the Transferor Company shall
be held under the supervision of the Court on 29th, October, 2016 at
11:00 a.m. at "The New Digital Logic Techno Park", Tower B, Sector
- 127, Noida - 201304, Uttar Pradesh, the venue proposed and
suggested by the learned counsel for the applicant. Mr. Vinay Singh
Bist, Advocate (Mobile No.9711670192) is appointed as the
Chairperson and Ms. Sanorita Dewri Bharali, Advocate (Mobile
No.8130980781) is appointed as the Alternate Chairperson for the said
meeting. They would be paid by the applicant a fee of ₹50,000/- each
for the meeting of the unsecured creditors of the transferor company,
thus scheduled. Mr. Ashok Kumar (Mobile No.9811107925) and Mr.
Chandan Ram (Mobile No.9910270568) are nominated to provide
secretarial assistance to the Chairperson and the Alternate Chairperson
to conduct the said meeting. They shall be paid a fee of ₹10,000/- each
for the services rendered.
14. The Quorum for the meeting of the unsecured creditors of the
Transferor Company shall be 25 in number and more than 25% in
value of the total unsecured debt. In case the said quorum for the
meeting is not secured by the appointed hour, the meeting shall be
adjourned by half an hour, and thereafter, the persons present and
voting shall be deemed to constitute the requisite quorum. For the
purpose of computing the quorum the valid proxies shall also be
considered, if the authorization for the proxy in the prescribed form
duly signed by the person entitled to attend and vote at the meetings is
filed with the registered office of the applicant company at least 48
(forty eight) hours before the meeting. The Chairperson and Alternate
Chairperson shall ensure that the proxy registers are properly
maintained.
15. The Chairperson and Alternate Chairperson shall ensure and satisfy
themselves that notices for convening the aforesaid meeting of the
unsecured creditors of the Transferor Company in the prescribed form,
along with copies of the Scheme of Amalgamation and the statement in
terms of Section 393 of the Companies Act, 1956, are sent to the
unsecured creditors of the Transferor company by speed post at their
registered or last known addresses at least 21 (twenty one ) clear days
before the date appointed for the meeting, in their presence or in the
presence of their authorized representatives. Notices of the meetings
shall also be published in the Delhi editions of the newspapers
"Business Standard" (English) and "Business Standard" (Hindi) in
terms of the Companies (Court) Rules, 1959 at least 21(twenty one )
clear days before the date appointed for the meeting. The Chairperson
and the Alternate Chairperson shall file in court affidavit(s) in terms of
Rule 76 of the Companies (Court) Rules, 1959 regarding due
compliance with above direction for service and publication of notice
not less than 7 (seven) days before the date fixed for holding of the
meeting.
16. The Chairperson and the Alternate Chairperson shall file report in
court about the result of the meeting within seven days of its
conclusion.
17. The applicant also seeks dispensation of requirement of the
Transferee company to approach this Court for sanction of Scheme of
Amalgamation under Sections 391 -394 of the Companies Act, 1956
on the ground that the Transferee Company is the holding Company of
the Transferor Company and holds 100% of its issued, subscribed and
paid up equity share capital. It is submitted that Transferee Company
shall appropriate all the assets and liabilities of the Transferor
Company after the Scheme is sanctioned and the entire share capital of
the Transferor Company will stand cancelled. The Transferee company
shall also not issue any new shares to the members of the Transferor
Company in consideration of the amalgamation and the Scheme does
not entail any reorganization of the share capital of the Transferee
Company. The Scheme does not entail or involve any arrangement
between the Transferee Company and its creditors and does not
adversely affect the rights and interests of any of creditors or members
of the Transferee Company in any manner whatsoever.
18. Having regard to the view consistently taken by this Court in a
series of orders accepting the legal position exempting the transferee
Company, being the holding Company, from taking out separate
proceedings under section 391 (2) of Companies Act, 1956, in such
fact-situation, the prayer to the above effect in respect of transferee
Company in the matter at hand is granted in as much as the transferor
Company (the applicant) is its wholly owned subsidiary Company [ see
In re : Sharat Hardware Industries Private Limited (1978) 48 Com Cas
23 (Delhi) and Mahaamba Investment Limited v/s IDBI Limited (2001)
105 Com Cas 16 (Bom.)
19. The application stands allowed in the aforesaid terms.
20. Dasti under the signatures of Court Master.
R. K. GAUBA, J
SEPTEMBER 21, 2016
