Genesis Ecotech Private Limited vs Alp Aeroflex India Private ...
2017 Latest Caselaw 517 Del

             IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Order Reserved on: 09.12.2016
                                               Order Delivered on: 30.01.2017
CO. APPL. (M) 165/2016

IN THE MATTER OF:

GENESIS ECOTECH PRIVATE LIMITED
                              ...Applicant/Transferor Company

                           AND

ALP AEROFLEX INDIA PRIVATE LIMITED
                           ...Non-Applicant/Transferee Company

                           Through:    Mr. Hemant Sharma, Mr. Palash
                                       Agarwal, Advocates.


CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL


SIDDHARTH MRIDUL, J.

1. The present application has been filed, under Sections 391 to 394 of the

Companies Act, 1956 (hereinafter referred to as 'the Act') by Genesis Ecotech

Private Limited (hereinafter referred to as 'the Transferor Company') in

connection with the Scheme of Amalgamation (hereinafter referred to as 'the

Scheme') of the Transferor Company with ALP Aeroflex India Private Limited

(hereinafter referred to as 'Transferee Company').

2. The registered offices of the Transferor Company as well as the

Transferee Company are situated in the National Capital Territory of Delhi,

within the jurisdiction of this Court.

3. The Transferor Company was incorporated under the Act, on

29.01.2013 vide certificate of Incorporation issued by the Registrar of

Companies, NCT of Delhi and Haryana at New Delhi.

4. The Transferee Company was incorporated under the provisions of the

Act vide certificate of incorporation dated 27.05.2011 issued by the Deputy

Registrar of Companies, NCT of Delhi and Haryana.

5. The authorized share capital of the Transferor Company as on

31.03.2016, is Rs.16,00,000/-, divided into 1,60,000 equity shares of Rs.10/-

each. The issued, subscribed and paid-up share capital of the Transferor

Company as on 31.03.2016, is Rs.15,87,750/-, divided into 1,58,775 equity

shares of Rs.10/- each.

6. The authorized share capital of the Transferee Company as on

31.03.2016, is Rs.17,00,00,000/-, divided into 1,70,00,000 equity shares of

Rs.10/- each. The issued, subscribed and paid-up share capital of the

Transferee Company as on 31.03.2016, is Rs.17,00,00,000/-, divided into

1,70,00,000 equity shares of Rs.10/- each.

7. Copies of the Memorandum of Association and Articles of Association

of the Transferor Company and Transferee Company have been filed on

record. The audited balance sheets, as on 31.03.2016, pertaining to the

Transferor Company and Transferee Company, along with the reports of the

auditors, have also been filed and the same are on record.

8. A copy of the Scheme has been enclosed along with the application and

the same is on record. It has been stated on behalf of the Transferor Company

that the amalgamation of the Transferor Company with the Transferee

Company would inter alia have the following benefits:

a) Reduced managerial overlap, reduced administrative cost, and

strengthened leadership in the industry in terms of the asset base,

revenue.

b) Improved organizational capability arising from pooling of assets,

human capital, and technical resources.

c) Achieving operational and management efficiency.

d) Lead to simplified corporate structure, more efficient utilisation of

capital and create a consolidated base for future growth of the

Transferee Company.

e) To strengthen the business and financial operations of the companies.

9. So far as the Share Exchange Ratio is concerned, it has been stated that

since the Transferor Company is wholly owned subsidiary of the Transferee

Company as on appointed date of the Scheme coming into effect, as defined in

the Scheme, no consideration shall be payable by the Transferee Company

pursuant to the amalgamation of the Transferor Company with the Transferee

Company, and accordingly the entire investments in the Transferor Company

held by the Transferee Company would stand cancelled.

10. It has been stated that no proceedings under sections 235 to 251 of the

Act (or corresponding provisions of the Companies Act, 2013) are pending

against the Transferor Company and Transferee Company as on the date of

institution of the present application.

11. Further, it has been stated that the Scheme has been approved by the

respective Board of Directors (BOD) of the Transferor Company and

Transferor Company. Copies of the resolutions dated 26.09.2016 passed by the

Board of Directors of both, the Transferor Company and Transferee Company,

whereby the scheme has been approved have been filed with the application

and the same are on record.

12. The status of the Shareholders, Secured Creditors and Unsecured

Creditors of the Transferor Company and the consents obtained from them for

the proposed Scheme has been set out in a table as hereinunder:-

Company        No. of equity   Consent    No. of     Consent No.      of   Consents
               Shareholders     given    Secured      given  Unsecured      given
                                         Creditors           Creditors

Transferor              2       ALL        NIL        N.A.       NIL        N.A.
Company

13. A prayer has been sought for dispensing with 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 modifications, the proposed Scheme.

14. The Transferor Company does not have any Secured Creditors and

Unsecured Creditors, therefore, the question of requirement of convening the

meetings of the Secured Creditors and Unsecured Creditors of the Transferor

Company, to consider and if thought fit, approve, with or without

modifications, the proposed Scheme, does not arise.

15. The Transferor Company has 02 equity shareholders. Both the

shareholders have given their written consents/NOCs, to the Scheme. The said

written consents/NOCs have been placed on record. The same have been

examined and found in order.

16. In view of the foregoing, the requirement of convening a meeting of the

equity shareholders of the Transferor Company, to consider and if thought fit,

approve, with or without modifications, the proposed Scheme, is dispensed

with.

17. A prayer has also been made in the present application seeking

dispensation of the requirement of publishing notices of meeting of equity

shareholders of the Transferor Company in newspapers. In view of the

circumstance that the requirement of convening meeting of equity shareholders

of the Transferor Company, to consider and if thought fit, approve, with or

without modifications, the proposed Scheme, has been dispensed with

hereinabove, the question of requirement of publishing notices of the said

meeting in newspapers does not arise.

18. Further, another prayer has been sought which reads as hereunder:

"(d) Transferee Company be exempted from filing any application or petition or to seek any consequential direction(s) from this Hon'ble Court including seeking dispensation from holding any meeting of shareholders or creditors of the transferee company and publication thereof."

19. In this behalf, it has been stated on behalf of the Transferor

Company/Applicant that that the Transferor Company is a wholly owned

subsidiary of Transferee Company and that no shares of the Transferee

Company shall be allotted in lieu of, or exchange of its holding in Transferor

Company & the share capital of Transferor Company shall stand cancelled as

per the scheme. Thus, it has been stated that the rights of the stakeholders are

not affected in any manner under the Scheme. Further, it has been stated that

the creditors of the Transferee Company would not be adversely affected

pursuant to the sanction being granted to the scheme without Transferee

Company filing any application before the Court, as the scheme does not

envisage any compromise or arrangement by the Transferee Company with its

creditors.

20. In this behalf, learned counsel appearing on behalf of the Transferor

Company would place reliance on the decisions of this Court in Company

Application (Main) No. 112 of 2016, in the matter of Kailash Healthcare

Limited rendered on 26.07.2016; Company Application (Main) No. 29 of 2015

in the matter of Satyam Cineplexes Limited rendered on 25.03.2015; Company

Application (Main) No.137 of 2015 in the matter of Convergys Stream Private

Limited, rendered on 28.08.2015; Company Petition No.115 of 1974 in 'In Re:

Sharat Hardware Industries Private Limited' rendered on 10.05.1976.

21. In view of the settled position of law as enunciated in these decisions

and considering the proposed scheme herein, the prayer sought by way of the

prayer clause (d) in the present application, as extracted hereinabove, is

granted. The Transferee Company/Non-Applicant is hereby exempted from

filing any application or petition or to seek any consequential directions from

the Court, including seeking dispensation from holding any meeting of

shareholders or creditors of the Transferee Company and publication thereof.

22. The application stands allowed in the aforesaid terms and is disposed of

accordingly.

SIDDHARTH MRIDUL, J JANUARY 30, 2017 sb/mk