Gujarat High Court
Ashima Dyecot Limited vs Respondent(S) on 19 January, 2015
Author: Harsha Devani
Bench: Harsha Devani
O/COMA/15/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY APPLICATION NO. 15 of 2015
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ASHIMA DYECOT LIMITED....Applicant(s)
Versus
......Respondent(s)
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Appearance:
MR SN SOPARKAR, SR. ADVOCATE with MR BANDISH SOPARKAR with
MRS SWATI SOPARKAR, ADVOCATE for the Applicant
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
Date : 19/01/2015
ORAL ORDER
1. This application is filed by the abovenamed Applicant company by summons dated 23rd December 2014, filed under sections 391 to 394 read with sections 100 to 103 of the Companies Act, 1956, in a proposed Scheme of Arrangement for Reconstruction and Compromise between Ashima Dyecot Limited and its Shareholders and Secured Creditors.
2. Mr. Saurabh Soparkar, Senior Advocate with Mr. Bandish Soparkar, learned advocate for the applicant company has submitted that necessary directions for convening the separate meetings of Equity Shareholders and Secured Creditors of the Applicant Company be issued. It has been submitted that vide para 12 of the affidavit in support of the Judges' Summons that the proposed scheme envisages the compromise only with the Secured Creditors of the Company and the rights and interests Page 1 of 6 O/COMA/15/2015 ORDER of the Unsecured Creditors of the Company are not proposed to be adversely affected as a result of the scheme. It is envisaged that once the proposed scheme is implemented, the Applicant Company shall be a financially stable company so as to be in a position to meet with its obligations to all the unsecured creditors. A certificate from a Chartered Accountant confirming the positive net worth of the company in Post Scheme scenario is produced on record which substantiates the said submission. The proposed restructure of share capital shall also not have any adverse impact on the interests of the unsecured creditors. In view of this it is prayed that the approval of the unsecured creditors is not essential for the consideration and sanction of the said scheme. Under the circumstances, meetings of unsecured creditors be dispensed with.
3. Considering the said submissions, it is hereby held that the meeting of the unsecured creditors for considering and approving the proposed scheme is not necessary and the same is hereby dispensed with.
4. Whereas upon reading of the affidavit dated 22 nd December 2014, 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), IT IS ORDERED:
5. That separate meetings of the Secured Creditors and Equity Shareholders of the Applicant Company shall be Page 2 of 6 O/COMA/15/2015 ORDER convened and held at the H. R. Hall, situate at the registered office of the Applicant Company at Texcellence Complex, Near Anupam Cinema, Khokhara Mehmedabad, Ahmedabad 380 021 in the state of Gujarat on Tuesday, the 24th day of February 2015 respectively at 11.00 a.m. and 3.00 p.m., for the purpose of considering and if thought fit, approving with or without modifications, the proposed Scheme of Arrangement for Reconstruction and Compromise between Ashima Dyecot Limited and its Shareholders and Secured Creditors.
6. That at least 21 clear days before the meetings to be held as aforesaid, Notice convening the said meetings, 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 CompaniesAct, 1956 and the prescribed Form of Proxy shall be sent by a prepaid letter posted under Book Post, addressed to each of the Equity Shareholders and Secured creditors of the Applicant Company, at their last known address. The lists of shareholders and secured creditors with their names and addresses shall be placed on record by the Applicant Company. A certificate shall be obtained from the Postal Dept. confirming the total number of dispatches so made.
7. That at least 21 clear days before the meetings to be held as aforesaid, Notice convening the said meetings indicating the day, the date, the place and 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 Page 3 of 6 O/COMA/15/2015 ORDER can be obtained free of charge at the Registered Office of the Applicant Company and/or at its Advocate's office i.e. 301, Shivalik-10, Opp. SBI Zonal Office, S. M. Road, Ambavadi, Ahmedabad 380 015 once each in the Indian Express, English daily and Sandesh, Gujarati daily (both Ahmedabad editions).
8. Mr. Bakulbhai Dholakia, Director of the Applicant Company, failing him Mr. Chintan Parikh, Director of the Applicant Company and failing him Mr. Shreekant Pareek, Director of the Applicant Company, shall be the Chairman of the aforesaid meetings to be held on 24th February 2015 and in respect of any adjournment or adjournments thereof.
9. That the Chairman appointed for the aforesaid meetings do issue advertisements and send out notices of the said meetings referred to above. It is further directed, that the Chairman of the meetings 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 meetings, including an adjournment of the meetings, and/or an amendment to the Scheme or resolution, if any, proposed at the meetings by any person(s) and to ascertain the decision of the meetings on a poll.
10. That the quorum for the said meetings shall be 5 (Five) for the meetings of the Equity Shareholders and secured Creditors, present in person or through authorized representative or through proxy.
11. That voting by proxy is permitted provided that the proxy in the prescribed form and duly signed by the person entitled Page 4 of 6 O/COMA/15/2015 ORDER to attend and vote at the aforesaid meetings, or by his authorised representative, is filed with the Applicant Company at its registered office at Ahmedabad, not later than 48 hours before the said meeting.
12. That the value of the vote of each Equity shareholder of the Company shall be as per the entries in the Registers of the company and that of the creditors as per the entries in the books of accounts of the Applicant Company and where the entries in the records or registers are disputed, the Chairman of the meetings shall determine the value or number for the purposes of the meetings and his decision in that behalf would be final.
13. That the Chairman do report to this Court, the result of the said meetings within 14 days of the conclusion of the meetings and the said Report shall be verified by his affidavit.
14. Vide Para 13 of the Affidavit in support of the Judges' summons it has been submitted by the Applicant Company that the proposed Restructure of share capital of the Applicant Company is proposed as an integral part of the proposed Scheme of Arrangement and the same does not involve either diminution of liability in respect of unpaid share capital or payment to any shareholder 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. It has been submitted that the approval granted to the present scheme by the Equity Shareholders of the Applicant Company at the meeting convened as directed herein, shall be treated as the Special Page 5 of 6 O/COMA/15/2015 ORDER Resolution as required under section 100 of the Companies Act, 1956. It has been contended that the interests of the creditors of the Applicant Company are not in any way affected by such reduction. 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.
15. The application is hereby disposed of.
(HARSHA DEVANI, J.) parmar* Page 6 of 6