Gujarat High Court
Yogeshwar Healthcare ... vs . .....Respondent(S) on 22 March, 2013
Author: R.M.Chhaya
Bench: R.M.Chhaya
YOGESHWAR HEALTHCARE LTD....Applicant(s)V/S. .....Respondent(s) O/COMA/91/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD COMPANY APPLICATION NO. 91 of 2013 =========================================================== YOGESHWAR HEALTHCARE LTD....Applicant(s) Versus . .....Respondent(s) ================================================================ Appearance: MRS SWATI SOPARKAR, ADVOCATE for the Applicant(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 22/03/2013 ORAL ORDER
Upon the application of the abovenamed De-merged Company by summons dated 21st March 2013 filed under Sections 391 to 394 read with Sections 100 to 103 of the Companies Act, 1956, upon hearing Smt.Swati Soparkar, learned counsel for the applicant-Company and upon reading of the affidavit dated 20th March 2013, filed in support of the Judges Summons for directions and other relevant annexures attached in support of the contents of the affidavit filed by the deponent, (Exhibit C being a copy of the proposed scheme of Arrangement).
1. It has been submitted that all the Unsecured Creditors of the Applicant Company have given their approval to the proposed scheme in form of the consent letters which are placed on record as Anne. D to the application. It has been further pointed out that there are no Secured Creditors of the applicant Company. The certificate from a Chartered Accountant confirming the status of the Secured and Unsecured Creditors as well as receipt of the written consents from all the Unsecured Creditors as on date, is also placed on record as Annex. E to the said application. In view of the same, the dispensation of the meeting of the Unsecured Creditors is sought and the same is hereby granted.
However, the applicant has prayed to convene a meeting of the Equity Shareholders of the Company to obtain their approval to the proposed Scheme.
It is ordered
3. That a meeting of the Equity Shareholders of the Applicant Company shall be convened and held at the Auditorium Hall situate at the Registered office of the Applicant Company at Krishna Shalby Hospital, 319, Green City, Ghuma, Ahmedabad 380 058 in the State of Gujarat on Tuesday, the 7th May 2013 at 11:00 a.m, for the purpose of considering and if thought fit, approving with or without modifications, the proposed Composite Scheme of Arrangement in the nature of de-merger and transfer of the de-merged undertaking viz. Ghuma Division of Yogeshwar Healthcare Limited to Shalby Limited, as well as the consequential reduction of capital of the applicant Company as proposed between the applicant Company and its Equity Shareholders.
That at least 21 clear days before the meeting to be held as aforesaid, Notice convening the said meeting, indicating the day, the date, the place and the time as aforesaid, together with a copy of the Scheme of Arrangement, copy of the Explanatory Statement required to be sent under Section 393 of the Companies Act, 1956 and the prescribed Form of Proxy shall be sent by a pre-paid letter posted under Book Post, addressed to each of the Equity Shareholders of the Applicant Company, at their last known address.
5. That at least 21 clear days before the meeting to be held as aforesaid, Notice convening the said meeting indicating the day, the date, the place and the time as aforesaid be published, stating that copies of the Scheme of Arrangement, the Explanatory Statement required to be furnished pursuant to Section 393 of the Companies Act, 1956 and Form of Proxy can be obtained free of charge at the registered Office of the Applicant Company and/or its Advocate s office i.e. 301, Shivalik -10, Opp.SBI Zonal Office, Nr.Old Excise Chowky, S.M.Road, Ambavadi, Ahmedabad 380 015 once each in the Indian Express, English daily and Sandesh, Gujarati daily (both Ahmedabad edition).
6. Shri Shyamal Joshi, the Director of the Applicant Company and failing him Shri Ravi Bhandari, the Director of the Applicant Company, shall be the Chairman of the aforesaid meeting to be held on 7th May 2013 and in respect of any adjournment or adjournments thereof.
7. That the Chairman appointed for the aforesaid meeting do issue advertisements and send out notices of the said meeting referred to above. It is further directed, that the Chairman of the meeting shall have all powers under the Articles of Association of the Applicant Company and under the Companies (Court) Rules, 1959 in relation to conduct of meeting including an amendment to the Scheme of resolution, if any, proposed at the meeting by any person(s); adjourning the meeting to another day, if so required and to ascertain the decision of the meeting on a poll.
That the quorum for the meeting of Equity Shareholders shall be 5(five) shareholders, present either in person or through proxy.
That voting by proxy is permitted provided that the proxy in the prescribed form and duly signed by the person entitled to attend and vote at the aforesaid meeting, or by his authorized representatives, is filed with the applicant Company at its registered office at Ahmadabad, not later than 48 hours before the said meeting.
That the value of the vote of each shareholders of the Company shall be as per the entries in the books of accounts of the Company and where the entries in the records are disputed, the Chairman of the meeting shall determine the value or number for the purposes of the meeting and his decision in that behalf would be final.
That the Chairman do report to this Court, the result of the said meeting within 14 days of the conclusion of the meeting and the said Report shall be verified by his affidavit.
It has been further submitted that the consequential reduction of Equity Share capital of the applicant Company is proposed as an integral part of the proposed Scheme of Arrangement. Further, the proposed reduction does not involve either diminution of liability in respect of unpaid share capital or payment to any shareholders of any paid-up share capital and the order of the Court sanctioning the Scheme shall be deemed to be an order under Section 102 of the Companies Act confirming the reduction. The approval given by the Equity Shareholders of the Applicant Company at the aforesaid meeting, shall be treated as the approval by the Special Resolution as required under Section 100 of the Companies Act, 1956. In view of this, considering the said submission, the procedure prescribed under Sections 100 and 101(2) of the Companies Act, 1956 as well as prescribed under Rules 48 to 65 of the Companies (Court) Rules, 1959, are hereby dispensed with.
The application is hereby disposed of.
(R.M.CHHAYA, J.) Suchit Page 5 of 5