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Judgment
This is an application which is filed by the applicant companies herein, ARG UDYOG Private Limited (for brevity ""Transferor Company""), with
TECHNICO INDUSTRIES Limited (for brevity ""Transferee Company"") jointly under section 230-232 of Companies Act, 2013, and other applicable
provisions of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 in relation to the Scheme
of Arrangement by way of Amalgamation (hereinafter referred to as the ""SCHEME"" ) proposed between the applicants. The said Scheme is also
annexed as Annexure ""A"" to the application. The applicants above named have preferred the instant application in effect for the following purpose as
evident inter alia from the reliefs sought for in the Application, namely:
a. Issue directions for holding the meeting of the Equity Shareholders of the Transferee Company i.e. Applicant Company- I, to fix the time, date and
place of such meeting, appointment of the Chairman and Alternate Chairman for the meeting and other matters as provided in Rule 3 of the
Companies (Companies, Arrangements and Amalgamation) Rules 2016,
b. Issue directions for holding meeting of the Equity Shareholders of the Transferor Company i.e. Applicant Company-II, to fix the time, date and
place of such meeting, appointment of the Chairman and Alternate Chairman for the meeting and other matters as provided in Rule 3 of the
Companies (Companies, Arrangements and Amalgamation) Rules 2016.
c. Issue direction for dispensing with the meeting of the Unsecured Creditors of the Transferor Company/ Applicant Company- I having regard of the
fact that the single Unsecured Creditor of the Transferor Company/ Applicant Company-I has given its Unconditional No Objection on the form of
affidavit giving no objection to the Scheme of Amalgamation.
d. Issue directions for holding the meeting of the Secured Creditors of the Transferee Company i.e. Applicant Company - II, to fix the time, date and
place of such meeting, appointment of the Chairman for the meeting and other matters as provided In Rule 3 of the Companies (Compromises,
Arrangements and Amalgamation) Rules 2016.
e. Issue directions for holding the meeting of the Unsecured Creditors of the Transferee Company i.e. Applicant Company No. II, to fix the time, date
and place of such meeting, appointment of the Chairman for the meeting and other matters as provided in Rule 3 of the Companies (Compromises,
Arrangements and Amalgamation) Rules 2016.
It is prayed that the meetings may be held at Hotel Atithi Palace, Darya Ganj, Near Ram Mandir & Hind Park, Delhi- 110002 and notices of the
meetings may be published once in the following two newspapers having wide circulation in Delhi District in which the registered offices of the
Applicant Companies are situated:
(i) Jansatta (Hindi Daily), having circulation in district Delhi.
(ii) Financial Express (English Daily), having circulation in district Delhi.
An affidavit in support of the above application sworn for and on behalf of the applicant companies by one Mr. Arun Gupta has been filed, being the
Director of the applicant Companies along with the application and it is also represented that the registered office of both the applicant companies are
situated within the territorial jurisdiction of this Tribunal and falling within Registrar of Companies, NCT, New Delhi.
In relation to ARG UDYOG PRIVATE LIMITED being the Transferor Company, in the Scheme marked as Annexure ""A"", it is represented that it
is having 18 Equity Shareholders whose consents have not been obtained by way of affidavits. It is further represented by the counsel for Applicants
that the Transferor Company has 01 Unsecured Creditors as on 30.09.2018. In relation to the equity shareholders, it seeks convening of the meetings
as the Tribunal finds fit, and in relation to the Unsecured Creditor it seeks dispensation of the meetings in view of consent been obtained by way of
affidavit.
In relation to Technico Industries Limited being Transferee Company in the Scheme marked as Annexure ""A"", Learned Counsel represents that
company is having 10 Equity Shareholders. It is further represented by the counsel for Applicants that the Transferee Company has 4 Secured
Creditors and 433 Unsecured creditors as on 30th September 2018, whose consents have not been obtained on affidavits. In relation to the equity
shareholders, secured creditors and unsecured creditors of the transferee company, it seeks convening of the meetings.
In relation to the territorial jurisdiction, Ld. Counsel for the applicant companies submit that since the registered office of the respective companies
fall within the purview of Registrar of Companies, NCT, New Delhi, this Tribunal has the necessary territorial jurisdiction to entertain the joint
application.
We have perused the joint application and the connected documents / papers filed therewith including the Scheme of Arrangement contemplated
between the Applicant companies.
From the certificate of incorporation filed, it is evident that Transferor Company is a private limited company incorporated under the provisions of
Companies Act, 1956 on 1sT July, 1985 with Registrar of Companies, Punjab, H.P. & Chandigarh, under the name and style of ""R.N. GUPTA
DRILLING PRIVATE LIMITED"" . On 10th June, 2008, the name of the Transferor Company changed to ""ARG UDYOG PRIVATE LIMITED"".
The Transferor Company by special resolution altered the provisions of its Memorandum of Association with respect to the place of the Registered
Office by changing it from the state of Haryana to Delhi and such alternation was confirmed by an order of Regional Director on 08.11.2017.
The Authorized Share Capital of the Transferor Company is Rs. 7,75,00,000/-(Rupees Seven Crore Seventy Five Lakh Only) divided into 7,75,000
(Seven Lakh Seventy Five Thousand) Equity Shares of Rs.100/-(Rupees Hundred only) each .The Issued , subscribed and Paid-up Share Capital of
the Transferor Company is Rs.1,35,52,200 /-(Rupees One Crore Thirty Five Lac Fifty Two Thousand Two Hundred) divided into 1,35,522 (One Lakh
Thirty Five Thousand Two Hundred and Twenty Two) Equity shares of Rs. 100 each fully paid-up.
From the certificate of incorporation filed, it is evident that the Transferee Company is a public limited company incorporated under the provisions
of Companies Act, 1956 on 11th January, 1985, vide CIN: U74210DL1985PLC019823 with Registrar of Companies, NCT of Delhi & Haryana under
the name and style of ""TECHNIC° INDUSTRIES PRIVATE LIMITED"" which later by passing a special resolution on 30.06.1998 had its name
changed to ""TECHNIC° INDUSTRIES LIMITED"" on 09' December, 1998.
10.The Authorized Share Capital of the Transferee Company is Rs.400,000,000/- (Rupees Forty Crore Only) divided into 25,000,000 (Two Crore and
Fifty Lakh Only) equity Shares of Rs.10/- (Rupee Ten only) each and 15,000,000 10% non- convertible cumulative Preference Shares of Rs. 10 each.
The Issued, Subscribed and Paid-Up Share Capital of the Transferee Company as on date is Rs. 167,510,250/-(Rupees Sixteen Crores Seventy Five
Lakh Ten Thousand and Two Hundred and Fifty Only) divided into 16,751,025/- (Rupees One Crore Sixty Seven lakh Fifty One Thousand and
Twenty Fiveonly) Equity Shares of Rs.10/- (Rupee Ten only) each.
Both the applicants have filed their respective Memorandum and Articles of Association inter alia delineating their object clauses as well as their
last available Audited Annual Accounts for the year ended 31.03.2018, and Unaudited Financial Statements for the period ended on September 30,
2018.
The Board of Directors of the Applicant companies vide meeting held on 26.11.2018, have unanimously approved the proposed Scheme of
Amalgamation as contemplated above and copies of resolutions passed thereon have been placed on record by the companies.
The appointed date as specified in the Scheme is 01.04.2018 subject to the directions of this Tribunal.
That the Applicant Company has complied with the proviso to Section 230 (7) and Section 232 (3) by filing the certificate of the Company's
Auditor in relation to compliance with the Accounting Standards under section 133 of the Companies Act, 2013.
The Applicant companies have stated in the application that no investigation proceedings are pending against them under Sections 210 or any other
applicable provisions of the Companies Act, 2013,
16.Taking into consideration the application filed jointly by the Applicant Companies and the documents filed therewith, this Tribunal propose to issue
the following directions with respect to calling, convening and holding of the meetings of the Shareholders, Secured and Unsecured Creditors, or
dispensing with the same as well as issue of notices including by way of paper publication as follows:-
A) In relation to the Transferor Company:
(i) With respect to Equity shareholders:
Meeting of the Equity shareholders of the Transferor Company is directed to be held at 10.00 AM on 5th April, 2019 at Hotel Atithi Palace, Darya
Ganj, Near Ram Mandir & Hind Park, Delhi - 110002. The quorum for the meeting of the Equity Shareholders shall be 9 in numbers or 50 % in value
terms whichever is higher.
(iii) With respect to Unsecured Creditors:
Since it is represented by the Transferor Company that there is one Unsecured Creditor in the company whose consent has been obtained by way of
an affidavit and is placed on record, the necessity of convening and holding a meeting to consider and if thought fit, the approval of the scheme is
dispensed with.
B) In relation to Transferee Cornoanv:
(i) With respect to Equity shareholders:
Meeting of the Equity shareholders of the Transferee Company is directed to be held at 12.00 Noon on 5th April, 2019 at Hotel Atithi Palace, Darya
Ganj, Near Ram Mandir & Hind Park, Delhi - 110002. The quorum for the meeting of the Equity Shareholders shall be 5 in numbers or 50 % in value
terms whichever is higher.
(ii) With respect to Secured Creditor:
Meeting of the Secured Creditors of the Transferee Company is directed to be held at 02.00 PM on 5' April, 2019 at Hotel Atithi Palace, Darya Ganj,
Near Ram Mandir & Hind Park, Delhi - 110002. The quorum for the meeting of the Equity Shareholders shall be 2 in numbers or 50 0/0 in value
terms whichever is higher.
(iii) With respect to Unsecured Creditors:
Meeting of the Unsecured Creditors of the Transferee Company is directed to be held at 03.00 PM on 5th April, 2019 at Hotel Atithi Palace, Darya
Ganj, Near Ram Mandir & Hind Park, Delhi - 110002. The quorum for the meeting of the Equity Shareholders shall be 105 in numbers or 250/0 in
value terms whichever is higher.
The quorum for the meeting directed to be convened shall be as specified under the meeting directed to be convened as above.
a) In case the quorum as noted above for the above meeting of the Applicant Companies is not present at the meetings, then the meetings shall be
adjourned by half an hour, and thereafter the persons present and voting shall deemed to constitute the quorum. For the purpose of computing the
quorum the valid proxies shall also be considered, if the proxy in the prescribed form, duly signed by the person entitled to attend and vote at the
meeting, is filed with the registered office of the applicant companies at least 48 hours before the meeting. The Chairperson and Alternate
Chairperson appointed herein along with Scrutinizer shall ensure that the proxy registers are properly maintained. However, every endeavor should be
made by the applicant companies to attain at least the quorum fixed, if not more in relation to approval of the scheme.
b) Mr. Sudeep Kumar Shrotriya, Advocate (Mobile: 9871908584) is appointed as the Chairperson and Ms. Easha Kadian, Advocate (Mobile:
9871121201) is appointed as the Alternate Chairperson for the meeting of equity shareholders of Transferor Company and Equity Shareholders,
Secured and Unsecured Creditors of the Transferee company as may have been directed to be convened by this Tribunal as above of the Applicant
Companies.
c) The fee of the Chairperson for the aforesaid meetings shall be Rs.1,00,000/- and the fee of the Alternate Chairperson shall be Rs. 75,000/- in
addition to meeting their incidental expenses. Mr. Himanshu Harbola, Company Secretary (Mobile: 9818993836) is appointed as a Scrutinizer and
would be entitled to fee of Rs.50, 000/- for services in addition to meeting incidental expenses. The Chairpersons will file their reports within a week
from the date of holding of the above said meetings.
d) That individual notices of the above said meetings shall be sent by the Applicant Companies through registered post or speed post or through courier
or through e-mail, 30 days in advance before the scheduled date of the meeting, indicating the day, date, the place and the time as aforesaid, together
with a copy of Scheme of Amalgamation, copy of explanatory statement, required to be sent under the Companies Act, 2013 and the prescribed form
of proxy shall also be sent along and in addition to the above any other documents as may be prescribed under the Act or rules may also be duly sent
with the notice.
e) That the Applicant Companies shall publish advertisement with a gap of atleast 30 clear days before the aforesaid meetings, indicating the day, date
and the place and time as aforesaid, to be published in the English Daily ""Financial Express"" in English, and ""Jansatta"" in Vernacular stating the copies
of Scheme of Amalgamation, the Explanatory Statement required to be furnished pursuant to Section 230 of the Companies Act, 2013 and the form of
proxy shall be provided free of charge at the registered office of Applicant Companies.
f) Voting shall be allowed on the proposed Scheme by voting in person, by proxy, through postal ballot or through electronic means as may be
applicable to the respective companies under the Act and rules framed there under. The Chairperson shall as aforestated be responsible to report the
result of the meeting within two weeks of the conclusion of the meeting with details of voting on the proposed scheme.
g) The companies shall individually send notice to Central Government, the Income Tax Authorities, Registrar of Companies NCT Delhi & Haryana,
Official Liquidator and Regional Director, RBI if either of the companies is /are registered as an NBFC, or required to be registered as one as well as
other sectoral regulators who may have significant bearing on the operation of the applicant companies or the Scheme per se along with copy of
required documents and disclosures required under the provisions of Companies Act, 2013 read with Companies (Compromises, Arrangements,
Amalgamations) Rules, 2016.
h) The applicant companies shall further furnish copy of the Scheme free of charge within 1 day of any requisition for the Scheme made by every
creditor or member of all the companies entitled to attend the meetings as aforesaid.
i) The authorized representative of the Applicant Companies shall furnish an affidavit of service of notice of meetings and publication of advertisement
and compliance of all directions contained herein at least a week before the proposed meetings.
j) All the aforesaid directions are to be complied with strictly in accordance with the applicable law including forms and formats contained in the
Companies (Compromises, Arrangements, Amalgamations) Rules, 2016 as well as the provisions of the Companies Act, 2013 by the Applicants.
The application stands allowed on the aforesaid terms.