Gujarat High Court
Ashima Limited vs Respondent(S) on 1 July, 2015
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
O/COMA/192/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY APPLICATION NO. 192 of 2015
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ASHIMA LIMITED....Applicant(s)
Versus
......Respondent(s)
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Appearance:
MRS SWATI SOPARKAR, ADVOCATE for the Applicant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 01/07/2015
ORAL ORDER
1. This application is filed by the above named Applicant Company by summons dated 29th June 2015, filed under Sections 391 to 394 read with Sections 100 to 103 of the Companies Act, 1956 and Section 52 of the Companies Act, 2013 in a proposed Scheme of Arrangement for Reconstruction and Compromise between Ashima Limited and its Equity Shareholders, Preference Shareholders and Secured Creditors. Mr. Bandish Soparkar, learned advocate appearing with learned advocate Smt. Swati Soparkar for the applicant company has made Page 1 of 10 O/COMA/192/2015 ORDER the submissions for (i) seeking directions for convening the separate meetings of Equity Shareholders, Preference Shareholders and Secured Creditors of the Applicant Company,(ii) praying for dispensation of the meeting of the Unsecured Creditors of the Applicant Company and (iii) for seeking dispensation of the procedure under Sections 100 and 101(2) of the Companies Act as well as prescribed under Rules 48 to 65 of the Companies (Court) Rules, 1959.
2. It has been submitted vide para 15 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 of the Unsecured Creditors of the Company are not likely 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 Page 2 of 10 O/COMA/192/2015 ORDER unsecured creditors. A certificate from a Chartered Accountant confirming substantial improvement in the 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. 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.
3. Vide para 16 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 Page 3 of 10 O/COMA/192/2015 ORDER not involve either diminution of liability in respect of unpaid share capital or payment to any shareholder of any paidup 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 and Preference Shareholders of the Applicant Company at the respective meetings convened as directed herein, shall be treated as the Special 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 Rule 48 to 65 of the Companies (Court) Rules 1959, are hereby dispensed with.
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O/COMA/192/2015 ORDER
4. Whereas upon reading of the affidavit dated 26th June 2015, 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).
5. That separate meetings of the Equity Shareholders, Preference Shareholders and Secured Creditors of the Applicant Company shall be convened and held at the registered office of the Applicant Company at Texcellence Complex, Near Anupam Cinema, Khokhara Ahmedabad380021, in the state of Gujarat on 20th August, 2015 respectively at 11.00 a.m., 12.00 p.m. And 1.00 p.m. For the purpose of considering and if thought fit, approving with our without modifications, the proposed Scheme of Arrangement for reconstruction and Compromise between Ashima Limited and its Shareholders and Secured Creditors. Page 5 of 10
O/COMA/192/2015 ORDER
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 Companies Act, 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, Preference 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 Department 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, Page 6 of 10 O/COMA/192/2015 ORDER 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 can be obtained free of charge at the Registered Office of the Applicant Company and/or at its Advocate's office i.e. 301, Shivalik10 Opp. SBI Zonal Office, S.M. Road, Ambavadi, Ahmedabad380015 once each in the Financial Express, English daily and Sandesh, Gujarati daily (both Ahmedabd editions).
8. Mr. Chintan Parikh, Director of the Applicant Company, failing him Dr. Bakul Dholakia, Director of the applicant Company and failing him Mr. Hiren Mahadevia, Company Secretary of the Applicant Company, shall be the Chairman of the aforesaid meetings to be held on 20th August 2015 and in respect of any adjournments thereof.
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O/COMA/192/2015 ORDER
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 persons(s) and to ascertain the decision of the meetings on a poll.
10. That the quorum for the said meetings shall be 15 for the meetings of the Equity Shareholders, 2 for the meeting of the Preference Shareholders and 4 for the meeting of the 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 Page 8 of 10 O/COMA/192/2015 ORDER and duly signed by the person entitled to attend and vote at the aforesaid meetings, or by his authorized 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 and Preference 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. Page 9 of 10
O/COMA/192/2015 ORDER
14. The application is hereby disposed off.
(VIPUL M. PANCHOLI, J.) K. Manoj.
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