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Judgment
Ina Malhotra, J
This is a joint petition filed by way of a first motion under sections 230-232 of the Companies Act, 2013 (hereinafter referred to as "the Act") by applicant-companies Nos. 1-9 (transferor companies Nos. 1-9) in connection with the scheme of amalgamation (hereinafter referred to as "the scheme") for merging its business with M/s. Strawberry Fields Televentures P. Ltd. (applicant-company No. 10/transferee company).
As per averments, the registered offices of transferor companies Nos. 1 to 9 as well as that of transferee company No. 10 are situated in the National Capital Territory of Delhi, falling within the territorial jurisdiction of this court.
Applicant No. 1/transferor No. 1-company was incorporated under the Act on January 30, 2008 under the name and style of "Dakshneshwar Infrastructure P. Ltd." having CIN U45400 DL2008 PTC173366. Its authorized share capital and issued, subscribed and paid-up capital is Rs. 1,00,000 divided into 10,000 equity shares of Rs. 10 each.
The main object of applicant-company No. 1 is in the field of real estate for developing residential, commercial and industrial buildings.
Applicant No. 2/transferor No. 2-company was incorporated on July 23, 2008 under the Act under the name and style of "Good Luck Infraprojects P. Ltd." having CIN U45400 DL2008 PTC181235. Its authorized share capital and issued, subscribed and paid-up capital is Rs. 1,00,000 divided into 10,000 equity shares of Rs. 10 each.
Applicant-company No. 2 is also in the business of real estate of residential, commercial and industrial buildings.
Applicant No. 3/transferor No. 3-company was incorporated on March 20, 2008 under the Act under the name and style of "Bride and Style Magazines P. Ltd." having CIN U22211 DL2008 PTC175683. Its authorized share capital and issued, subscribed and paid-up capital is Rs. 1,00,000 divided into 10,000 equity shares of Rs. 10 each.
It is engaged in the business of printing, publishing and sale of newspapers and other periodicals including book, magazines, etc.
Applicant No. 4/transferor No. 4-company was incorporated on February 27, 2008 under the Act under the name and style of "Run Properties P. Ltd." having CIN U45400 DL2008 PTC174652. Its authorized share capital and issued, subscribed and paid-up capital is Rs. 1,00,000 divided into 10,000 equity shares of Rs. 10 each.
The main object of applicant-company No. 4 is in the field of real estate for developing residential, commercial and industrial buildings.
Applicant No. 5/transferor No. 5-company was incorporated on August 20, 2008 under the Act under the name and style of "VNL Teleservices P. Ltd." having CIN U64201 DL2008 PTC182242. Its authorized share capital and issued, subscribed and paid-up capital is Rs. 1,00,000 divided into 10,000 equity shares of Rs. 10 each.
Applicant-company No. 5 is engaged in the business of software and hardware development.
Applicant No. 6-transferor No. 6-company was incorporated on October 16, 2008 under the Act under the name and style of "India Mobility Research P. Ltd." having CIN U64201 DL2008 PTC184310. Its authorized share capital is Rs. 5,00,000 while its issued, subscribed and paid-up capital is Rs. 1,00,000 divided into 10,000 equity shares of Rs. 10 each.
The main objects of applicant-company No. 6 is engaged in the business of development and import/export of Intellectual Property in the field of mobile technology.
Applicant No. 7/transferor No. 7-company was incorporated on March 5, 2008 under the Act under the name and style of "NMG Projects P. Ltd." having CIN U45200 DL2008 PTC174920. Its authorized share capital and issued, subscribed and paid-up capital is Rs. 1,00,000 divided into 10,000 equity shares of Rs. 10 each.
Applicant-company No. 7 is engaged in the business of real estate of residential, commercial and industrial buildings.
Applicant No. 8/transferor No. 8-company was incorporated on February 11, 2009 under the Act under the name and style of "Skylight Estates P. Ltd." having CIN U70101 DL2009 PTC187502. Its authorized share capital is Rs. 5,00,000 while its issued, subscribed and paid-up capital is Rs. 2,32,000 divided into 23,200 equity shares of Rs. 10 each.
The main object of applicant-company No. 1 is in the field of real estate for developing residential, commercial and industrial buildings.
Applicant No. 9/transferor No. 9-company was incorporated on December 4, 2007 under the Act under the name and style of "Cellpassion Networks P. Ltd." having CIN U64200 DL2007 PTC171061. Its authorized share capital and issued, subscribed and paid-up capital is Rs. 1,00,000 divided into 10,000 equity shares of Rs. 10 each.
Applicant-company No. 9 is engaged in the business of rendering, maintaining, hiring, etc., any kind of communication services.
Applicant No. 10/transferee No. 10-company was incorporated under the Act on April 19, 2007 under the name and style of "Strawberry Fields Televentures P. Ltd." having CIN U74999 DL2007 PTC162323. Its authorized share capital and issued, subscribed and paid-up capital is Rs. 1,00,000 divided into 10,000 equity shares of Rs. 10 each.
The main object of transferee company No. 10 is in the field of manufacturing, processing, designing, import/export of all types of telecom equipments.
As per averments, the transferor companies are desirous of amalgamating with the transferee company and have formulated a scheme of amalgamation.
Copies of the memoranda of association and articles of association along with their latest audited balance-sheets, as on March 31, 2019 and reports of the statutory auditors of all applicant-companies Nos. 1 to 10 have been filed.
It has also been certified by the statutory auditors of each of the applicant-companies that the accounting treatment as adhered in the scheme is in compliance with the Accounting Standards prescribed under section 133 of the Companies Act, 2013.
It has been stated on behalf of the applicant-companies that the scheme of amalgamation is necessitated and justified on grounds that:
(a) The applicant-companies are group companies under the same management and amalgamation would result in reduction of the companies within the group, engaged in similar activities which will result into reduction in administrative, managerial and other overheads expenses resulting in optimal utilization of various resources due to consolidation of activities.
(b) The amalgamation would result in the creation of a company with much larger asset based and a net worth with strong financials enabling further growth and the development of the said transferee company.
(c) The scheme shall be beneficial and in the interest of all stakeholders of the transferor and the transferee companies including their shareholders, creditors and employees.
(d) Would result in cancellation of intercompany transactions giving rise to greater efficiency in operations and management of the businesses and shall improve internal controls and compliances of the company.
The appointed date of the scheme is April 1, 2019.
So far as the share exchange ratio is concerned, in terms of the scheme, it has been determined in accordance with the report on valuation of shares and share exchange ratio dated April 22, 2019 issued by M/s. R.N. Marwah and Co., LLP, Chartered Accountants, New Delhi, as per the settled principles of valuation. The share exchange ratio is based on net asset value.
The board of directors of transferor companies Nos. 1 to 9 and transferee company/applicant No. 10 vide their respective meetings held on May 4, 2019 have unanimously approved the proposed scheme of amalgamation. Copy of the board resolutions passed have been filed.
Vide the present application, a prayer is made for dispensation of convening meetings in view of the following facts:
(A) In respect of transferor company No. 1/applicant-company No. 1:
It has three shareholders who have accorded their consent vide affidavits placed on record.
It has no secured creditors as certified by the chartered accountant.
It has two unsecured creditors who have accorded their consent vide affidavits placed on record.
In view of the consent affidavits of its three shareholders and two unsecured creditors being on record, the requirement of convening the meeting of the shareholders and unsecured creditors is dispensed with. Further, as there is no secured creditor, the question of convening their meeting does not arise.
(B) In respect of transferor company No. 2/applicant-company No. 2:
It has three equity shareholders who have accorded their consent vide affidavits placed on record.
It has no secured creditors as certified by the chartered accountant.
It has fourteen unsecured creditors who have accorded their consent vide affidavits placed on record.
In view of the consent accorded by its three shareholders and fourteen unsecured creditors, the requirement of convening the meeting of the shareholders and unsecured creditors is dispensed with. Further, as there is no secured creditor, the question of convening their meeting does not arise.
(C) In respect of transferor company No. 3/applicant-company No. 3:
It has two shareholders who have accorded their consent vide affidavits placed on record.
It has no secured creditors as certified by the chartered accountant.
It has one unsecured creditor who have accorded its consent vide affidavits placed on record.
In view of the consent affidavits of its two shareholders and one unsecured creditor being on record, the requirement of convening the meeting of the shareholders and unsecured creditors is dispensed with. Further, as there is no secured creditor, the question of convening their meeting does not arise.
(D) In respect of transferor company No. 4/applicant-company No. 4:
It has two shareholders who have accorded their consent vide affidavits placed on record.
It has no secured creditors as certified by the chartered accountant.
It has two unsecured creditors who have accorded their consent vide affidavits placed on record.
In view of the consent affidavits of its two shareholders and two unsecured creditors being on record, the requirement of convening the meeting of the shareholders and unsecured creditors is dispensed with. Further, as there is no secured creditor, the question of convening their meeting does not arise.
(E) In respect of transferor company No. 5/applicant-company No. 5:
It has two shareholders who have accorded their consent vide affidavits placed on record.
It has no secured creditors as certified by the chartered accountant.
It has two unsecured creditors who have accorded their consent vide affidavits placed on record.
In view of the consent affidavits of its two shareholders and two unsecured creditors being on record, the requirement of convening the meeting of the shareholders and unsecured creditors is dispensed with. Further, as there is no secured creditor, the question of convening their meeting does not arise.
(F) In respect of transferor company No. 6/applicant-company No. 6:
It has two shareholders who have accorded their consent vide affidavits placed on record.
It has no secured creditors as certified by the chartered accountant.
It has one unsecured creditor who have accorded its consent vide affidavits placed on record.
In view of the consent affidavits of its two shareholders and one unsecured creditor being on record, the requirement of convening the meeting of the shareholders and unsecured creditors is dispensed with. Further, as there is no secured creditor, the question of convening their meeting does not arise.
(G) In respect of transferor company No. 7/applicant-company No. 7:
It has three shareholders who have accorded their consent vide affidavits placed on record.
It has no secured creditors as certified by the chartered accountant.
It has one unsecured creditor who have accorded its consent vide affidavits placed on record.
In view of the consent affidavits of its three shareholders and one unsecured creditor being on record, the requirement of convening the meeting of the shareholders and unsecured creditors is dispensed with. Further, as there is no secured creditor, the question of convening their meeting does not arise.
(H) In respect of transferor-company No. 8/applicant-company No. 8:
It has three shareholders who have accorded their consent vide affidavits placed on record.
It has no secured or unsecured creditor as certified by the chartered accountant.
In view of the consent affidavits of its three shareholders being on record, the requirement of convening the meeting of the shareholders and unsecured creditors is dispensed with. Further, as there is no secured or unsecured creditor, the question of convening their meeting does' not arise.
(I) In respect of transferor-company No. 9/applicant-company No. 9:
It has two shareholders who have accorded their consent vide affidavits placed on record.
It has no secured creditors as certified by the chartered accountant.
It has one unsecured creditor who have accorded its consent vide affidavits placed on record.
In view of the consent affidavits of its two shareholders and one unsecured creditor being on record, the requirement of convening the meeting of the shareholders and unsecured creditors is dispensed with. Further, as there is no secured creditor, the question of convening their meeting does not arise.
(J) In respect of transferee company No. 10
It has two equity shareholders who have accorded their consent vide affidavits placed on record.
It has no secured creditors as certified by the chartered accountant.
It has five unsecured creditors who have accorded their consent vide affidavits placed on record.
In view of the consent accorded by its two shareholders and five unsecured creditors, the requirement of convening the meeting of the shareholders and unsecured creditors is dispensed with. Further, as there is no secured creditor, the question of convening their meeting does not arise.
The proposed scheme of amalgamation is annexed along with the present application.
It is submitted that the proposed arrangement is sought to be made under the provisions of sections 230 to 232 of the Companies Act, 2013 and the scheme if sanctioned by this Tribunal, will take effect from the date of on which certified copy of the order of sanctioning of proposed scheme, passed by this Tribunal is filed with the Registrar of Companies.
It has also been submitted that there are no proceedings pending inquiry or investigation in respect of the applicant-company.
While dispensing with the meetings, this Bench also directs that notices be sent to the Central Government through the office of the Regional Director (Northern Region), the Income-tax Authorities, Registrar of Companies, NCT of Delhi and Haryana, official liquidator and other sectoral regulators or authorities as required under sub-section (5) of section 230 of the Companies Act, 2013 who may have significant bearing on the operation of the applicant-companies along with copy of required documents and disclosures required under the provisions of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016. Copies of the notices along with the proof of dispatch be filed before this Bench along with the affidavit of compliance.
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 and Amalgamations) Rules, 2016 as well as the provisions of the Companies Act, 2013 by the applicant.
As sequel to the above, the present application stands allowed by dispensing with the meetings of shareholders and unsecured creditors of the applicant-companies.