DHL Ecommerce (India) Private Limited vs Registrar of Companies

Shyam Babu Gautam, Member Technical

The Court convened by videoconference today.

The Learned Counsel for the Applicant Companies states that the present Scheme is Scheme of Arrangement between DHL Ecommerce (India) Private Limited with DHL Supply Chain India Private Limited and their respective Shareholders (‘the Scheme’ or ‘this Scheme’), under the provisions of Sections 230 to 232 and other applicable provisions of the Companies Act, 2013 and Rules framed thereunder.

The Learned Counsel for the Applicant Companies states that the resolutions passed by the Board of Directors of the respective Demerged Company and Resulting Company in their meeting held on 6th April, 2022 approved the Scheme. The Appointed Date fixed under the Scheme is 1st April, 2022 or any other date as may be decided by the NCLT. The Board Resolution approving the Scheme for the Applicant Companies is annexed as Annexure D1 & D2, respectively to the Company Scheme Application.

The Share Capital of the Applicant Companies as on 31st December, 2021 is as under:

i. The Authorised Share Capital of the First Applicant Company is Rs. 215,63,55,000 divided into 21,56,35,500 Equity Shares of Rs. 10/- each. Issued, subscribed and paid-up capital of the First Applicant Company is Rs. 215,63,55,000 divided into 21,56,35,500 Equity Shares of Rs. 10/- each.

ii. The Authorised Share Capital of the Second Applicant Company is Rs. 7,00,00,000 divided into 70,00,000 Equity Shares of Rs. 10/-each. Issued, subscribed and paid-up capital of the Second Applicant Company is Rs. 5,89,55,600 divided into 58,95,560 Equity Shares of Rs. 10/- each.

The Learned Counsel for the Applicant Companies further submits the introduction and rationale for the Scheme:-

The Demerged Company / The First Applicant Company

The First Applicant Company is engaged in the business of providing transportation services to its customers with a clear vision of providing simple, fast and reliable long-haul trucking or transportation services across India, using its own fleet of dry trucks and reefer/cold-chain trucks.

The Resulting Company / The Second Applicant Company

The Second Applicant Company is engaged in supply chain business which includes providing warehousing services, transportation and other value-added services. It is also an integrated solutions provider wherein it offers comprehensive solutions to the customer to extend end-to-end supply chain benefits. While providing supply chain management services, Resulting Company requires warehouses to conduct its operations since the services involve storing goods for customers, packing, handling, racking/shelving, storage, transportation, and other value-added services. Resulting Company obtains premises it requires on lease for using them in providing supply chain management services. Transportation services are having only domestic operations i.e., transportation of goods by road from point A to Point B within Country. The transport services are provided majorly for dry segment (containers which are not temperature controlled) i.e., providing transportation services in general freight trucking, long distance general freight trucking for goods, full truck load and partial truck load. These services are provided to existing customers who are availing the warehousing services from Resulting Company and also to other customers who need only transportation services. Currently all the trucks are hired from open market and then the same are used to provide the transportation services to ultimate customers.

Rationale of the Scheme:

The demerger of the Dry Segment Business (as defined in the Scheme) of the Demerged Company into the Resulting Company :

• Consolidation of the Dry Segment Business (as defined in the Scheme) of the group under the Resulting Company;

• Enhancement of the value for the shareholders in future and allow a focused strategy in operations of the group, which would be in the best interests of the respective shareholders and other stakeholders;

• Greater administrative efficiency; and;

• Operational rationalization, organizational efficiency and optimum utilization of resources.

The Learned Counsel for the Applicant Companies further submits that, in consideration of the Scheme, as determined by the Valuation report dated 6th April, 2022 issued by CA Harsh Chandrakant Ruparelia and annexed and marked as Annexure M to the Company Scheme Application is as follows:

Upon this Scheme becoming effective and in consideration of the demerger of the Demerged Undertaking from the Demerged Company and vesting of the Demerged Undertaking into the Resulting Company in accordance with this Scheme, the Resulting Company, without any further act or deed and without receipt of any cash, issue and allot to the shareholders of the Demerged Company as on the Record Date (“Demerger Share Entitlement Ratio”), in the following ratio:

To equity shareholders of the Demerged Company

“1 (One) Equity Share of Rs. 10 (Indian Rupees Ten) each of the Resulting Company for every 500 (Five Hundred) Equity Shares of Rs. 10 (Indian Rupees Ten) each of the Demerged Company”

The Learned Counsel for the First Applicant Company submits that there are 2 (Two) Equity Shareholders in the First Applicant Company and all the Equity Shareholders has given their consent in writing to the proposed Scheme. In view of the consent affidavits filed by all the Equity Shareholders of the First Applicant Company, the meeting of the Equity Shareholders of the First Applicant Company, for the purpose of considering and, if thought fit, approving the proposed Scheme with or without modification(s) is hereby dispensed with. The consent affidavits are annexed as Annexure I1 to the Company Scheme Application.

The Learned Counsel for the Second Applicant Company submits that there are 3 (Three) Equity Shareholders in the Second Applicant Company and all the Equity Shareholders has given their consent in writing to the proposed Scheme. In view of the consent affidavits filed by all the Equity Shareholders of the Second Applicant Company, the meeting of the Equity Shareholders of the Second Applicant Company, for the purpose of considering and, if thought fit, approving the proposed Scheme with or without modification(s) is hereby dispensed with. The consent affidavits are annexed as Annexure I2 to the Company Scheme Application.

There are no Secured Creditors in the Applicant Companies, therefore, the question of conveying and holding the meeting and issue of notices to the Secured Creditors does not arise.

The Learned Counsel for the Applicant Companies submits that as on February 28, 2022 there are 66 (Sixty Six) Unsecured Creditors of the aggregate value of INR 493,43,87,935 (Rupees Four hundred ninety three crores forty three lakhs eighty seven thousand nine hundred thirty five) in the First Applicant Company and 1,600 (One Thousand Six Hundred) Unsecured Creditors of the aggregate value of INR 157,60,69,085 (Rupees One hundred fifty seven crores sixty lakhs sixty nine thousand eighty five) in the Second Applicant Company.The Learned Counsel for the Applicant Companies further submits that since the present Scheme is an arrangement between the Applicant Companies and its shareholders as contemplated in Section 230(1)(b) and not in accordance with the provisions of Section 230(1)(a) of the Companies Act, 2013, as there is no compromise of arrangement with creditors as it does not affect the rights and interests of the Creditors of the Applicant Companies. Further there is no diminution of liability of any of the Creditors of the Applicant Companies who will be paid off in the ordinary course of business. In view of above, no meeting of Unsecured Creditors of the Applicant Companies is required to be convened. The bench hereby directs the Applicant Companies to issue notice to all its Unsecured Creditors as on 31st August, 2022 by sending notices through R.P.A.D or by Email or by speed post or by courier or hand delivery of the proposed Scheme with a direction that they may submit their representations, if any, within a period of 30 (thirty) days from the date of receipt of such intimation to the Tribunal with copy of such representations shall simultaneously be served upon the respective Applicant Company, failing which, it shall be presumed that they have no representations to make on the proposed Scheme. The Auditor’s Certificate verifying the list of Unsecured Creditors of the Applicant Companies as on 28th February, 2022 are annexed and marked as Annexure L1 and L2, respectively, to the Company Scheme Application.

The Applicant Companies are accordingly directed to serve notices along with copy of Scheme upon:- (i) concerned Income Tax Authorities within whose jurisdiction the Applicant Company’s assessments are made i.e. for the First Applicant Company / Demerged Company, Circle 15(1)(2), Mumbai, having PAN No. AAICD3681R, for the Second Applicant Company / Resulting Company, Circle 15(1)(2), having PAN No. AAECD6334M (ii) the Central Government through the office of Regional Director, Western Region, Mumbai, (iii) Registrar of Companies, Mumbai, and (iv) GST Authority within whose jurisdiction the Applicant Companies are assessed to GST i.e. for the First Applicant Company / Demerged Company bearing GSTIN 27AAICD3681R1ZV and for the Second Applicant Company / Resulting Company bearing GSTIN 27AAECD6334M1ZD; pursuant to Section 230(5) of the Companies Act, 2013 and Rule 8 of the Companies (Compromises Arrangements and Amalgamations) Rules, 2016 pursuant to sub-section (5) of Section 230 of the Companies Act, 2013 and as per Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016, through R.P.A.D or by Email or by speed post or by courier or hand delivery with a direction that they may submit their representations, if any, within a period of 30 (thirty) days from the date of receipt of such notice to the Tribunal with copy of such representations shall simultaneously be served upon the respective Applicant Company, failing which, it shall be presumed that the authorities have no representations to make on the proposed Scheme.

The Applicant Companies to file affidavit of service in the Registry proving dispatch of notices to the Regulatory Authorities and dispatch of notices to Unsecured Creditors of the Applicant Companies and to report to this Tribunal that the directions regarding the issue of notices have been duly complied with.