Gujarat High Court
Associated Dyestuff Pvt ... vs . .....Respondent(S) on 8 March, 2013
Author: R.M.Chhaya
Bench: R.M.Chhaya
ASSOCIATED DYESTUFF PVT LTD....Applicant(s)V/S. .....Respondent(s) O/COMA/75/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD COMPANY APPLICATION NO. 75 of 2013 ================================================================ ASSOCIATED DYESTUFF PVT LTD....Applicant(s) Versus . .....Respondent(s) ================================================================ Appearance: MRS SWATI SOPARKAR, ADVOCATE for the Applicant(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 08/03/2013 ORAL ORDER
Upon the application of the abovenamed De-merged Company by summons dated 7th March 2013 filed under Sections 391 to 394 read with Sections 100 to 103 of the Companies Act, 1956, upon hearing Smt. Swati Soparkar, learned advocate for the applicant Company and upon reading of the affidavit dated 22nd February 2013, 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),
1. It has been submitted that the applicant De-merged Company is a private limited company. It has been pointed out that all the Equity Shareholders of the applicant Company have given their approval to the scheme in form of the consent letters which are placed on record as Annex. 'D' to the application. The certificate from a Chartered Accountant confirming the status of the Equity Shareholders as well as receipt of the written consents is also placed on record as Annex. 'E' to the said application. In view of the same, the dispensation of the meeting of the Equity Shareholders is sought and the same is hereby granted.
2. However, the applicant has prayed to convene separate meetings of the Secured and Unsecured Creditors of the Company to obtain their approval to the proposed scheme.
IT IS ORDERED:
3. That separate meetings of the Unsecured Creditors and Secured Creditors of the applicant Company shall be convened and held at the Administrative Office of Associated Dyestuff Private Limited situate at A-1/5, Phase-1, GIDC, Vatva, Ahmedabad-382445 in the State of Gujarat on Friday, the 26th April, 2013 respectively at 11.00 a.m. and 2.00 p.m., for the purpose of considering and if thought fit, approving with or without modifications, the proposed scheme of arrangement in the nature of de-merger and transfer of the de-merged undertaking viz. Dyes Division of Associated Dyestuff Private Limited to Associated Colours Industries Private Limited, as well as the consequential reduction of capital of the applicant Company as proposed between the applicant Company and its Creditors.
4. 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 pre-paid letter posted under Book Post, addressed to each of the Secured Creditors and Unsecured Creditors of the applicant Company, at their last known address. The lists of 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.
5. That at least 21 clear days before the meeting 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 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, Nr. Old Excise Chowky, S.M. Road, Ambavadi, Ahmedabad-380015 once each in the Indian Express, English daily and Jansatta-Loksatta, Gujarati daily (both Ahmedabad edition).
6. Shri Viral Hamendrabhai Shah, the Director of the applicant Company and failing him Shri Vishal Hamendrabhai Shah, the Director of the applicant Company, shall be the Chairman of the aforesaid meetings to be held on 26th April 2013 and in respect of any adjournment or adjournments thereof.
7. 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 meeting including an amendment to the scheme or resolution, if any, proposed at the meetings by any person(s); adjourning the meeting to another day, if so required and to ascertain the decision of the meetings on a poll.
8. That the quorum for the meeting of Secured Creditors shall be 2 (Two) and Unsecured Creditors shall be 15 (Fifteen) of the Unsecured Creditors, present either in person or through proxy.
9. 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 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.
10. That the value of the vote of each Secured Creditor and Unsecured Creditor of the Company shall be as per the entries in the books of accounts of the company and where the entries in the records 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.
11. 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.
12. It has been further submitted that the consequential reduction of Equity Share Capital of the applicant Company is proposed as an integral part of the proposed scheme of arrangement. Further, the proposed reduction 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. The written consents given by the Equity Shareholders of the applicant Company approving the Scheme, shall be treated as the approval by the Special Resolution as required under Section 100 of the Companies Act, 1956. 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.
13. The application is hereby disposed of.
(R.M.CHHAYA, J.) mrp Page 6 of 6