Gujarat High Court
Bakeri Urban Development Private ... vs Respondent(S) on 6 August, 2015
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
O/COMA/241/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY APPLICATION NO. 241 of 2015
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BAKERI URBAN DEVELOPMENT PRIVATE 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 : 06/08/2015
ORAL ORDER
1. This application is filed by the above named applicant-company by summons dated 4.8.2015, filed under Section 391 to 394 of the Companies Act, 1956, in a proposed scheme of amalgamation of four Transferor Companies; viz. Bakeri Southern Urban Development Private Limited, Peshani Investments Private Limited, Sanskrut Investments and Consultancy Services Private Limited and Suyojan Properties Private Limited with Bakeri Urban Development Private Limited, the applicant-Transferee Company, as proposed between the applicant-company and its Equity Shareholders and Creditors. Learned advocate Mrs.Swati Soparkar has made submissions for (i) praying for dispensation of the meetings Page 1 of 7 HC-NIC Page 1 of 7 Created On Fri Aug 07 02:35:44 IST 2015 O/COMA/241/2015 ORDER of the Equity Shareholders and Unsecured Creditors of the applicant-company; and (ii) seeking directions for convening the meeting of the Secured Creditors of the applicant-company.
2. It has been submitted that the applicant being a private limited company, has a very small number of Equity Shareholders. All the Shareholders of the Company have approved the scheme in form of the written consent letters. All these consent letters are annexed with the application as Exhibit-`D'. The certificate confirming the status of the Shareholders as well as the receipt of consent letters from all of them is annexed at Exhibit `E'. In view of the same, dispensation is sought from convening the meeting of the Equity Shareholders of the applicant-company and considering the facts and circumstances and the submissions, the same is hereby granted.
3. It has been submitted vide para 11 of the affidavit in support of the Judges' Summons that the proposed scheme does not envisage any compromise with the Unsecured Creditors of the Company. It has been further submitted that the Transferee Company has substantially positive net worth in the pre scheme scenario and although some of the Transferor Companies have some Page 2 of 7 HC-NIC Page 2 of 7 Created On Fri Aug 07 02:35:44 IST 2015 O/COMA/241/2015 ORDER losses, the net worth of the Transferee Company shall not be severely affected. 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 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 meeting of the unsecured creditors for considering and approving the proposed scheme is not necessary and the same is hereby dispensed with.
4. However, the applicant-company has sought directions to convene meeting of its Secured Creditors for the purpose of obtaining their approval to the proposed scheme. Upon reading of the affidavit dated 1.8.2015, 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), the following Page 3 of 7 HC-NIC Page 3 of 7 Created On Fri Aug 07 02:35:44 IST 2015 O/COMA/241/2015 ORDER order is passed.
a) That a meeting of the Secured Creditors of the applicant-company shall be convened and held at the registered office of the applicant-
company at `Sanskrut', 1st floor, Old High Court Road, Off.Ashram Road, Ahmedabad-380 009 in the State of Gujarat on Wednesday, the 16th September, 2015 at 3.00 p.m., for the purpose of considering and if thought fit, approving with or without modifications, the proposed Scheme of Amalgamation of four Transferor Companies viz. Bakeri Southern Urban Development Private Limited, Peshani Investments Private Limited, Sanskrut Investments and Consultancy Services Private Limited and Suyojan Properties Private Limited with Bakeri Urban Development Private Limited the applicant-Transferee Company as proposed between the applicant-Transferor Company and its Secured Creditors.
b) 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 Page 4 of 7 HC-NIC Page 4 of 7 Created On Fri Aug 07 02:35:44 IST 2015 O/COMA/241/2015 ORDER pre-paid letter posted under Book Post, addressed to each of the Secured Creditors of the applicant-company, at their last known address. The lists of 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.
c) 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 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, Shivalik-10, Opp.SBI Zonal Office, S.M.Road, Ambavadi, Ahmedabad 380 015 once each in `Indian Express', English daily and `Gujarat Samachar', Gujarat daily (both Ahmedabad editions).
d) Mr.Asit Somani, the Director of the Applicant-Company, and failing him Mr.Nikhil Shah, the Director of the Applicant-Company, shall be the Chairman of the aforesaid meeting to Page 5 of 7 HC-NIC Page 5 of 7 Created On Fri Aug 07 02:35:44 IST 2015 O/COMA/241/2015 ORDER be held on 16th September, 2015 and in respect of any adjournment of adjournments thereof.
e) 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 meetings, including an adjournment of the meeting and/or an amendment to the Scheme or resolution, if any, proposed at the meeting by any person(s) and to ascertain the decision of the meeting on a poll.
f) That the quorum for the said meeting shall be 2(two) Secured Creditors, present through authorized representative or through proxy.
g) 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.
h) That the value of the vote of each Secured Page 6 of 7 HC-NIC Page 6 of 7 Created On Fri Aug 07 02:35:44 IST 2015 O/COMA/241/2015 ORDER Creditor 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.
i) 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.
5 The application is hereby disposed off.
(VIPUL M. PANCHOLI, J.) Srilatha Page 7 of 7 HC-NIC Page 7 of 7 Created On Fri Aug 07 02:35:44 IST 2015