Gujarat High Court
Hester Biosciences Limited vs Respondent(S) on 5 August, 2015
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
O/COMA/229/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY APPLICATION NO. 229 of 2015
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HESTER BIOSCIENCES 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 : 05/08/2015
ORAL ORDER
The application is filed by the above named applicant-company by summons dated 30.7.2015 filed under Sections 391 to 394 of the Companies Act, 1956, in a proposed composite scheme of arrangement in the nature of amalgamation of three transferor companies, viz. Diavetra Lifesciences Private Limited, Gujarat Agrofarm Limited, and Hester Biosciences (Mauritius) Limited, with Hester Biosciences Limited, the applicant transferee-company, and de-merger and transfer of trading undertaking of Innoves Animal Health Private Limited, the de-merged company, into Hester Biosciences Limited, the applicant-resulting company, as proposed between the applicant-company and its equity shareholders. Smt. Swati Soparkar, advocate for the applicant-company has made the submissions (i) seeking directions for convening the meeting of equity shareholders of the applicant-company and (ii) praying for dispensation of the meetings of the creditors of the applicant- company.
2. It has been submitted vide paragraph No.19 of the affidavit in Page 1 of 5 HC-NIC Page 1 of 5 Created On Thu Aug 06 02:42:02 IST 2015 O/COMA/229/2015 ORDER support of the Judge's Summons that, the proposed scheme does not envisage any compromise with the secured or unsecured creditors of the company. It has been further submitted that the transferee-company has substantial positive net worth in the pre-scheme scenario, and although the transferor-companies and the de-merged undertaking have some losses, the net worth of the transferee-company shall not be severely affected. The net worth of the transferee-company in past severely affected. The net worth of the transferee-company in post-scheme scenario shall be more than Rs.74.75 crores. The said contention is substantiated by a certificate from the Chartered Accountant. Hence, the rights and interests of the creditors of the company are not likely to be prejudicially affected as a result of the proposed scheme. The applicant has undertaken to fulfill all its liabilities towards the creditors in the regular course of business. In view of this, it has been prayed that the approval of the creditors of the applicant transferee/resulting company is not essential for the consideration and sanction of the said scheme. Considering the said submissions, and in view of the facts and circumstances, it is hereby held that the meetings of the secured/unsecured creditors for considering and approving the proposed scheme is not necessary, and the same is hereby dispensed with.
3. However, the applicant-company has clarified vide paragraph No.21 of the said affidavit that, apart from the above referred contention with regard to the interest of the creditors being not affected, pursuant to the terms of the loan agreements with the said secured creditors, their approval to the scheme is required. In compliance of the said understanding, the applicant-company has already approached its secured creditors, and their approval to the scheme shall be obtained, and placed on record before the final sanction of the scheme by this Court.
4. Attention of this Court has been further drawn to paragraph No.16 of the said affidavit in support of the Judge's Summons. It has been Page 2 of 5 HC-NIC Page 2 of 5 Created On Thu Aug 06 02:42:02 IST 2015 O/COMA/229/2015 ORDER pointed out that being a listed public limited company, the applicant has obtained the requisite prior approval of SEBI through the concerned stock exchanges viz. BSE Limited, and National Stock Exchange of India Limited, and the observation letters are already placed on record. It has been further pointed out that compliance of clause 5.16(a) of SEBI circular No. CIR/CFD/DIL/5/2013 dated 4.2.2013 read with SEBI Circular No. CIR/CFD/DIL/8/2013 dated 21.5.2013 with regard to postal ballot and e-voting by the public shareholders is not necessary for the applicant-company. The applicant-company has already submitted the requisite undertaking, and the auditor's certificate to the SEBI, copies of which are also placed on record. Perusing the same, this Court does not think it necessary to issue any directions in this regard.
5. Upon reading of the affidavit dated 27.7.2015 filed in support of the Judge's Summons for directions, and other relevant annexures attached in support of the contents of the affidavit filed by the deponent, (Exh. `F', being a copy of the proposed scheme of arrangement), it is hereby ordered, 5.1 That a meeting of the equity shareholders of the applicant-company shall be convened and held at the ATMA Hall, Ashram Road, Ahmedabad-380009 in the State of Gujarat on Tuesday, i.e. 15.7.2015 at 2.00 p.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 amalgamation of the three transferor companies, viz. Diavetra Lifesciences Private Limited, Gujarat Agrofarm Limited, and Hester Biosciences (Mauritius) Limited, with Hester Biosciences Limited, the applicant transferee-company, and de-merger and transfer of trading undertaking of Innoves Animal Health Private Limited, the de-merged company into Hester Biosciences Limited, applicant-resulting company, as proposed between the applicant transferee-company and its equity shareholders.
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O/COMA/229/2015 ORDER
5.2 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. The lists of shareholders 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.
5.3 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 time as aforesaid be published stating that copies of the scheme of arrangement, the self-explanatory statement required to be furnished pursuant to Section 393 of the Companies Act, 1956, and the 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, Shivalik- 10, Opp. SBI Zonal Office, S.M. Road, Ambavadi, Ahmedabad-380015 once each in "The Times of India", English daily and "Sandesh", Gujarati daily (both Ahmedabad editions).
5.4 That Mr. Rajiv Gandhi, the Chief Executive Officer and Managing Director of the applicant-company, and failing him, Mr. Jigar Shah, the Chief Financial Officer of the applicant-company, shall be the Chairman of the aforesaid meetings, to be held on 15.9.2015 and in respect of any adjournment or adjournments thereof.
5.5 That the Chairman appointed for the aforesaid meetings do issue advertisements and send out notices of the said meetings referred to Page 4 of 5 HC-NIC Page 4 of 5 Created On Thu Aug 06 02:42:02 IST 2015 O/COMA/229/2015 ORDER above. It is further directed, that the Chairman of the meetings shall have all the 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/persons, and to ascertain the decision of the meeting on a poll.
5.6 That the quorum for the said meeting shall be 15 (fifteen) equity shareholders, present in person or through authorized representative or through proxy.
5.7 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 representative, is filed with the applicant-company at its registered office at Ahmedabad, not later than 48 hours before the said meeting.
5.8. 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 where the entries in the records or registers 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.
5.9. That the Chairman do report to this Court, the result of the said meeting within 14 (fourteen) days of the conclusion of the meeting and the said report shall be verified by his affidavit.
The application is hereby disposed off.
(VIPUL M. PANCHOLI, J.) sndevu Page 5 of 5 HC-NIC Page 5 of 5 Created On Thu Aug 06 02:42:02 IST 2015