Punjab-Haryana High Court
The Scheme Of Amalgamation Of vs Unknown on 23 October, 2013
Author: Surya Kant
Bench: Surya Kant
C.P. NO. 154 OF 2013 ::1::
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
COMPANY JURISDICTION
COMPANY PETITON NO. 154 OF 2013(O&M)
IN THE MATTER OF:
SECTIONS 391 AND 394 OF THE COMPANIES ACT, 1956
AND IN THE MATTER OF:
THE SCHEME OF AMALGAMATION OF
Cachet Real Estates Pvt. Ltd
. NON-PETITIONER/1st TRANSFEROR COMPANY
AND
Calvine Builders & Constructions Private Limited
. NON-PETITIONER /2nd TRANSFEROR COMPANY
AND
Deltaland Real Estate Private Limited
. NON-PETITIONER /3rd TRANSFEROR COMPANY
AND
Domus Realtors Private Limited
. NON-PETITIONER /4th TRANSFEROR COMPANY
AND
First City Real Estate Private Limited
. NON-PETITIONER /5th TRANSFEROR
COMPANY
AND
Flora Real Estate Private Limited
. NON-PETITIONER /6th TRANSFEROR COMPANY
AND
Irving Builders & Developers Private Limited
. NON-PETITIONER /7th TRANSFEROR COMPANY
AND
Mariposa Builders & Developers Private Limited
. NON-PETITIONER /8th TRANSFEROR COMPANY
AND
Saguna Builders & Developers Private Limited
. NON-PETITIONER /9th TRANSFEROR COMPANY
Gupta Dinesh
2013.11.26 13:52
I attest to the accuracy and
integrity of this document
Hihg Court Chandigarh
C.P. NO. 154 OF 2013 ::2::
AND
Vilina Estate Developers Private Limited
. NON-PETITIONER /10th TRANSFEROR COMPANY
AND
Vinanti Builders & Developers Private Limited
. NON-PETITIONER /11th TRANSFEROR COMPANY
AND
Gyan Real Estate Developers Private Limited
. NON-PETITIONER /12th TRANSFEROR COMPANY
AND
Diwakar Estates Limited
. PETITIONER NO. 1 /13th TRANSFEROR COMPANY
WITH
DLF UNIVERSAL LIMITED
. PETITIONER NO. 2/TRANSFEREE COMPANY
CORAM:
HON'BLE MR. JUSTICE SURYA KANT.
1.Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present : Mr. Praveen Gupta & Ravi Bassi, Advocates for the Petitioners SURYA KANT, J. [ORAL] C.A. NO.518 OF 2013 Allowed as prayed for.
COMPNAY PETITION NO. 154 OF 2013 This first motion petition under section 391 of the Companies Act, 1956 , duly supported by affidavits, seeks dispensation of the meetings of the Shareholders of Petitioner No.1/ 13th Transferor Company (Diwakar Estates Limited) and the Gupta DineshPetitioner No.2/Transferee Company (DLF UNIVERSAL LIMITED) 2013.11.26 13:52 I attest to the accuracy and integrity of this document Hihg Court Chandigarh C.P. NO. 154 OF 2013 ::3::
as well as Unsecured Creditors of the said petitioner-Transferor and Transferee Companies and for dispensation of meeting of Secured Creditors of the Transferee Company for the purposes of considering the Scheme of Amalgamation (Annexure P-7).
[2]. It is averred that the registered offices of Petitioner No.1/ 13th Transferor Company (Diwakar Estates Limited) and the Petitioner No.2/Transferee Company (DLF UNIVERSAL LIMITED) are situated at Gurgaon, within the State of Haryana and the registered offices of non-petitioners / Transferor Company Nos. 1 to 12 are situated within the National Capital Territory of Delhi, within the jurisdiction of High Court of Delhi. All the Transferor and Transferee Companies are registered under the Companies Act, 1956 with the Registrar of Companies, New Delhi.
[3] The main objects of Petitioner No.1/ 13th Transferor Company (Diwakar Estates Limited) and the Petitioner No.2/Transferee Company (DLF UNIVERSAL LIMITED) are set out in their Memorandum and Articles of Association which are placed on record as Annexures P-3 and P-6, respectively. [4] The Board of Directors of the aforesaid petitioner companies have approved the Scheme in their respective meetings held on 30.05.2013 vide resolutions at Annexures P-10 and P-11. [5] The Authorised Share Capital of Petitioner No. 1 / 13th Transferor Company is Rs.501,000/- divided into 1880 Equity Shares of Rs.10/- each and 4822 Preference Shares of Rs.100/- each. The Gupta DineshIssued, subscribed and paid-up capital of 13th Transferor Company 2013.11.26 13:52 I attest to the accuracy and integrity of this document Hihg Court Chandigarh C.P. NO. 154 OF 2013 ::4::
was Rs.5,00,000/- divided into 1880 Equity Shares of Rs.10/- each and 4812 Preference Shares of Rs100/- each.
[6] The Authorised Share Capital of the Petitioner No.2/Transferee Company as on 31-12-2012 is Rs.162,79,60,000/- divided into 16,18,15,000 Equity Shares of Rs.10/- each and 97,600 Preference Shares of Rs.100/- each and 5000 Preference Shares of Rs.10/- each. The present Issued, subscribed and paid-up capital of Transferee Company is Rs.54,45,76,940 divided into 5,44,57,694 Equity Shares of Rs.10/- each.
[7] The list of Shareholders of Petitioner No. 1 / 13th Transferor Company and their consents to the Scheme of Amalgamation are annexed with the petition at Annexure P-18 and P-20 (colly), respectively. The said company has no Secured Creditor and have one Unsecured Creditor as certified by MM Jindal & Company, Chartered Accountants vide Annexure P-12 (colly). The consent of Un-Secured Creditor to the Scheme is at Annexure P-13. [8] The list of Shareholders of the Transferee Company and their consents to the Scheme of Amalgamation are annexed with the petition as Annexure P-19 and P-21 (colly), respectively. The said company has six Secured Creditors and their consents to the Scheme of Amalgamation are also appended as Annexure P-15. The said company has 6282 Unsecured Creditors as is evident from certificate issued by MM Jindal & Company, Chartered Accountants at Annexure P-14.
[9] A prayer has been made to dispense with convening of
Gupta Dinesh
2013.11.26 13:52
I attest to the accuracy and
integrity of this document
Hihg Court Chandigarh
C.P. NO. 154 OF 2013 ::5::
meeting of Un-Secured Creditors of Transferee Company on the ground that Un-secured Creditors having 27.72% of total debts have given their consents/no objections to the Scheme of Amalgamation and their consents are at Annexure P-16. Unsecured Creditors holding 4.05% are the trade creditors. Remaining un-Secured Creditors are the Customers/Flat buyers who have booked the properties in various projects of the Transferee company. As per averments made in para 44 of the affidavit is support of summons, the booking amounts/installments paid by them are not loans and on actual handing over of the possession of flats/properties alongwith registration of sale deeds etc, these debts shall stand liquidated. It is further averred in para 45, that the Net Worth of the amalgamated company is Rs.783.25 crores, which is much more that the liabilities of its un-Secured Creditors and the credit worthiness of the Company is not likely to be diluted on the Scheme of Amalgamation being sanctioned. It is also averred that no prejudice would be caused to the said un-Secured Creditors/Customers since their rights or the terms and conditions would not be affected under the Scheme. The Transferee Company has in Para 46 undertaken to pay all legitimate claims as and when the same would become due for payments or is demanded by the above stated unsecured Creditors/Customers. [10] It is stated by learned counsel for the petitioner companies that the Scheme of Amalgamation would, inter alia, have the benefits of increasing efficiency by pooling of resources and their optimum utilization, thereby availing synergies from combined resources and Gupta Dinesh 2013.11.26 13:52 I attest to the accuracy and integrity of this document Hihg Court Chandigarh C.P. NO. 154 OF 2013 ::6::
will enable the company concerned to rationalize and streamline their management, businesses and finances and the businesses will be carried on more economically and profitably after the proposed amalgamation.
[11] In the light of the submissions made by learned counsel for the petitioner-companies and upon perusal of the consents given by the Shareholders and sole Un-Secured Creditor of Petitioner No.1/ 13th Transferor Company as well as consents given by the Shareholders and Secured Creditors of Petitioner No.2/Transferee Company, I find no reason to decline the prayer to dispense with the convening of their respective meetings and the prayer in this petition to that extent is accepted. Since there is no Secured Creditor of Petitioner No. 1/13th Transferor Company, no occasion arises to dispense with convening of meeting.
[12] However, let meeting of the Unsecured Creditors of Petitioner No. 2 / Transferee Company be convened on 21.12.2013 at 10.30 am at DLF Club 5, Opposite Trinity Tower, DLF Phase-V, Gurgaon, Haryana-122002.
[13] For convening the meeting of Unsecured Creditors of Petitioner No. 2 / Transferee Company, I appoint Mr. Nitin Jain, Advocate as Chairman and Miss Ashima Mor, Advocate as Co- Chairperson. The fee of the Chairman and Co-Chairperson shall be Rs. 50,000/- and Rs. 40,000/-, respectively. The Chairman of the meeting shall report to this court the result of the said meeting within seven days of the conclusion of the meeting and said reports Gupta Dinesh 2013.11.26 13:52 I attest to the accuracy and integrity of this document Hihg Court Chandigarh C.P. NO. 154 OF 2013 ::7::
shall be verified by his affidavit.
[14] Since most of the un-Secured Creditors are the allottees of flats/plots of the Transferee Company and the Transferee company has categorically deposed to safeguard and protect their interest, there appears to be no necessity to issue individual notices to the un- Secured Creditors. Suffice, it would be to invite them through a public notices in the newspapers, namely "Business Standard ( English )", "Financial Express (English)" and Jansatta ( Vernacular)" and also in the official Gazette of State of Haryana. Notice shall be published at least 21 days before the date of proposed meeting. [15] The Scheme put up in the meeting of the Unsecured Creditors shall be decided by the majority in number representing 3/4 in value of them present and voting either in person or proxy. [16] 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 company at its registered office, not later than 48 hours before the said meeting.
[17] Adjourned to 15.01.2014
23.10.2013 (SURYA KANT)
DINESH JUDGE
Gupta Dinesh
2013.11.26 13:52
I attest to the accuracy and
integrity of this document
Hihg Court Chandigarh