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Judgment
Hemant Kumar Sarangi, Member (T)
This is a First Motion application jointly filed by the Applicant companies herein, M/s. Scoop Constructions Pvt. Ltd., M/S. Azzam Properties Pvt. Ltd., M/S. Flummox Marketing Pvt. Ltd. and their respective Shareholders and Creditors under sections 230-232 of the Companies Act, 2013, and other applicable provisions of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamation) Rules, 2016 in relation to the Scheme of Amalgamation (hereinafter referred to as the "SCHEME"), proposed between the applicants. The said Scheme is annexed with this application.
The applicants above named have preferred the instant application for the following reliefs namely:
i. Dispensing with requirement for convening the meetings of the Equity Shareholders of the Transferor Companies and the Transferee Companies and also to dispense with the requirement of issue and publication of notices of the same and appointment of chairman for the meetings;
ii. Dispensing with requirement for convening the meeting of the Secured Creditors of the Transferor Company and Transferee Company and also to dispense with the requirement of issue and publication of notices of the same and appointment of chairman for the meetings;
iii. Dispense with requirement for convening the meeting of the Un-Secured Creditors of the Transferor Company and Transferee Company in view of their consents of more than 90% and also to dispense with the requirement of issue and publication of notices of the same and appointment of chairman for the meetings; and
iv. Issue such other orders or directions be given as this Hon'ble Court may deem fit and proper in the
v. facts and circumstances of the present case.
An affidavit in support of the above application sworn by and on behalf of Transferor Company No. 1 and 2 by Ms. Sushanta Nayak, on behalf of Transferee Company No. 3, by Mr. Udyan Routray, the authorised persons of all the companies, have been filed. The corresponding Board resolutions of authorizations by all companies are also placed on record.
All the Applicant Companies have filed their Memorandum and Articles of Association as well as last available audited Financial Statements as on 31.03.2019.
The Transferor Company No. 1, was incorporated under the provisions of the Companies Act, 1956, as a private limited company, with the name and style as 'Scoop Constructions Pvt. Ltd.' on 22nd December, 2011, The Registered Office of the Company was changed from the state of Rajasthan to Delhi on 12th December, 2011 and fresh certificate was issued, dated 11th September, 2011, issued by ROC, NCT Delhi & Haryana, having CIN No. U452000DL2011PTC338823 and having registered office at A-187, Basement, Defence Colony, New Delhi 110024. The Share Capital structure of the Transferor Company on the date of filing of this Application is as follows:
Particulars
Amount in INR
Authorised Share Capital
5,00,000 Equity shares of Rs. 1/- each
5,00,000/-
Total
11,00,000/-
Issued, Subscribed and Paid-up Share Capital
4,30,500 Equity Shares of Rs. 1/- each
4,30,500/-
Total
4,30,500/-
In relation to the Transferor Company No. 1, it is submitted that the Company has Four Equity Shareholders and all the equity shareholders have given their written consent by filing affidavits in support of the Scheme constituting 100% in value and 100% in number. The consent affidavits of both the members have been placed on record. It is further represented that the Transferor Company has Nil Secured Creditors and Nil Unsecured Creditors.
The consent affidavits of each of the shareholders have been placed on record. The certificates of chartered accountant in respect of creditors have also been placed on record. In relation to the shareholders, the Transferor Company seeks dispensation from convening and holding of their meeting on the ground that the same have given their consent affidavits in favour of the Scheme.
The Transferor Company No. 2, was incorporated under the provisions of the Companies Act, 1956, as a private limited company, with the name and style as 'Azzam Properties Pvt. Ltd.' on 31st October, 2011, with the Registrar of Companies, Rajasthan. The Registered Office of the Company was changed from the state of Rajasthan to Delhi on 24th August, 2018 and fresh certificate was issued, the company was allotted CIN No. U70101DL2011PTC338821, having its registered office at A-187, Basement, Defence Colony, New Delhi 110024. The Share Capital structure of the Transferor Company on the date of filing of this Application is as follows:
Particulars
Amount in INR
Authorised Share Capital
20,000 Equity shares of Rs. 10/- each
2,00,000/-
Total
2,00,000/-
Issued, Subscribed and Paid-up Share Capital
11,000 Equity Shares of Rs. 10/- each
1,10,000/-
Total
1,10,000/-
In relation to the Transferor Company No. 2, it is submitted that the Company has Two Equity Shareholders and both the equity shareholders have given their consent by filing affidavits in support of the Scheme constituting 100% in value and 100% in number. The consent affidavits of both the members have been placed on record. It is further represented that the Transferor Company has Nil Secured Creditors and Nil Unsecured Creditors.
The consent affidavits of each of the Shareholders have been placed on record. The certificates of chartered accountant in respect of creditors have also been placed on record. In relation to the shareholders, the Transferor Company seeks dispensation from convening and holding of their meeting on the ground that the same have given their consent affidavits in favour of the Scheme.
The Transferee Company was incorporated as a private limited company under the provisions of the Companies Act, 1956, on 26th December, 2011, as a Company limited by shares, with the name and style "Flummox Marketing Pvt. Ltd." having CIN No. U45100DL2011PTC338822 and having registered office at A-187, Basement, Defence Colony, New Delhi 110024. The Share Capital structure of the Transferee Company on the date of filing of this Application is as follows:
Particulars
Amount in INR
Authorised Share Capital
22,00,000 Equity shares of Rs. 1/- each
22,00,000/-
Total
22,00,000/-
Issued, Subscribed and Paid-up Share Capital
16,47,000 Equity Share of Rs. 1/- each
16,47,000/-
TOTAL
16,47,000/-
In relation to the Transferee Company, it is submitted that the Company has Four Equity Shareholders, all the Equity Shareholders have given their consent by filing affidavits in support of the Scheme constituting 100% in value and 100% in number. The consent affidavits of each of the members have been placed on record. It is further represented that the Transferee Company has Nil secured creditors and One Unsecured Creditors and all of them have given their consents by way of affidavit.
The consent affidavits of each of the shareholders and creditors have been placed on record. The certificates of chartered accountant in respect of creditors have also been placed on record. In relation to the shareholders and creditors, the Transferee Company seeks dispensation from convening and holding of their meeting on the ground that the same have given their consent affidavits in favour of the Scheme.
It is represented that the Scheme does not contemplate any corporate debt restructuring exercise as contemplated under Section 230(2) of the Act. It is further represented that the application filed by the applicant is maintainable in view of Rule 3(2) of the Rules. Learned Counsel also submits that the registered offices of all the Applicant Companies are situated within the territorial jurisdiction of this tribunal and fall within the territorial jurisdiction of the Registrar of Companies, NCT, and New Delhi.
The appointed date as specified in the Scheme is 01.04.2019 subject to the directions of this Tribunal.
The Board of Directors of the Applicant No. 1 & 2/Transferor Companies and the Applicant No. 3/Transferee Company vide Board Resolutions passed on 31.08.2019 have unanimously approved the proposed Scheme of Amalgamation as contemplated above and copies of resolutions have also been placed on record by the Applicant Companies herein.
The Certificates of statutory auditors of all the applicant companies confirming that the accounting treatment in the scheme is in conformity with the Companies (Accounting Standards) Rules, 2016 and is in conformity with Section 133 of the Companies Act, 2013 have been placed on record.
We have perused the Application and the connected documents/papers filed along with the Scheme of Amalgamation contemplated amongst the Applicant Companies.
Taking into consideration the joint application and the documents filed therewith showing compliance of various provisions of the Companies Act and the rules framed there under, we propose to issue the following directions with respect to convening and holding of the meetings of the Shareholders, Debenture holders, Secured and Unsecured Creditors or dispensing with the same as follows: -
A. Applicant Company No. 1/Transferor Company
* With respect to Equity Shareholders
The Transferor Company has Four Equity Shareholders and all the equity shareholders have given their consent affidavits in support of the Scheme constituting 100% in value and 100% in number which are on record, hence the necessity of convening a meeting of the Equity Shareholders is dispensed with.
* With respect to Secured Creditors
The Transferor Company has Nil Secured Creditor, hence the necessity of convening a meeting of the Secured Creditors is obviated.
* With respect to Unsecured Creditors
The Transferor Company has Nil Unsecured Creditors, hence the necessity of convening a meeting of the Secured Creditors is obviated.
B. Applicant Company No. 2/Transferor Company
* With respect to Equity Shareholders
The Transferor Company has Two Equity Shareholders and both the equity shareholders have given their consent affidavits in support of the Scheme constituting 100% in value and 100% in number which are on record, hence the necessity of convening a meeting of the Equity Shareholders is dispensed with.
* With respect to Secured Creditors
The Transferor Company has Nil Secured Creditor, hence the necessity of convening a meeting of the Secured Creditors is obviated.
* With respect to Unsecured Creditors
The Transferor Company has Nil Unsecured Creditors, hence the necessity of convening a meeting of the Secured Creditors is obviated.
C. Applicant Company No. 3/Transferee Company
* With respect to Equity Shareholders
The Transferee Company has Four Equity Shareholders and all the shareholders have given their consent affidavits in support of the Scheme constituting 100% in value and 100% in number which are on record, hence the necessity of convening a meeting of the same is dispensed with.
* With respect to Secured Creditors
The Transferor Company has Nil Secured Creditor, hence the necessity of convening a meeting of the Secured Creditors is obviated.
* With respect to Unsecured Creditors
The Transferee Company has One Unsecured Creditors, the Unsecured Creditors has given his consent by filing affidavit in support of the Scheme constituting 100% in value and 100% in number which are on record, hence the necessity of convening a meeting of the same is dispensed with.
The application stands allowed on the aforesaid terms and is disposed of.