Gujarat High Court
Priyal International Private Limited vs Respondent(S) on 28 June, 2016
Author: R.M.Chhaya
Bench: R.M.Chhaya
O/COMA/285/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY APPLICATION NO. 285 of 2016
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PRIYAL INTERNATIONAL 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 R.M.CHHAYA
Date : 28/06/2016
ORAL ORDER
1. A Composite Scheme of Arrangement in the nature of Demerger and Transfer of Demerged Undertaking viz. Trading Undertaking of Priyal International Private Limited to Shroff Wholesome Living Farms Private Limited as well as the Restructure of Capital of in form of Utilization of Security Premium Account of Priyal International Private Limited is proposed under Sec. 391 to 394 read with Sections 78 and 100 to 103 of the Companies Act, 1956 and Section 52 of the Companies Act, Page 1 of 9 HC-NIC Page 1 of 9 Created On Thu Jun 30 02:27:47 IST 2016 O/COMA/285/2016 ORDER 2013.
2. In this regard, the present application is filed by the abovenamed Applicant Demerged company by summons dated 23rd June 2016. Smt. Swati Soparkar, learned advocate appears for the applicant company. The submissions are made for (i) seeking dispensation of the meeting of the Equity Shareholders of the Applicant Company, (ii) seeking directions for convening meeting of the Unsecured Creditors of the Applicant Company; and (iii) seeking dispensation of the procedure as envisaged under Sec. 100 to 103 of the Companies Act, 1956.
3. It has been submitted that all the Equity Shareholders of the Applicant 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 Page 2 of 9 HC-NIC Page 2 of 9 Created On Thu Jun 30 02:27:47 IST 2016 O/COMA/285/2016 ORDER letters from all of them is annexed as 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.
4. Further, it has been submitted vide para 13 of the affidavit in support of the Judges' Summons that proposed Restructure of the Capital in form of the utilization of the Securities Premium Account of the Demerged Company amounting to reduction of the capital is consequential in nature and 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 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. Further, it is proposed that the Page 3 of 9 HC-NIC Page 3 of 9 Created On Thu Jun 30 02:27:47 IST 2016 O/COMA/285/2016 ORDER approval granted to the present scheme by the Equity Shareholders of the Applicant Company vide the consent letters, shall be treated as the Special Resolution as required under Sec. 78 and 100 of the Companies Act, 1956 and Section 52 of the Companies Act, 2013. Considering the said submissions, and in view of the facts and circumstances, it is hereby held that the procedure prescribed under Section 101(2) of the Companies Act, 1956 and under rule 48 to 65 of the Companies (Court) Rules 1959 is not necessary to be followed and the same is hereby dispensed with.
5. It has been further submitted that there are no Secured Creditors of the Applicant Company and the same is confirmed by the certificate issued by the Chartered Accountant annexed as Exhibit'E'. Hence the directions are sought to convene a meeting of only Unsecured Creditors of the Applicant Company;
IT IS ORDERED:
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6. That a meeting of the Unsecured Creditors of the Applicant Company shall be convened and held at the registered office of the Applicant Company situated at A35, Pariseema Complex, Opp. IFCI Bhuvan, C. G. Road, Ahmedabad 380006 in the state of Gujarat on Thursday, the 28th day of July 2016 at 11.30 a.m., for the purpose of considering and if thought fit, approving with or without modifications, the Composite Scheme of Arrangement in the nature of de merger and transfer of Trading Undertaking of Priyal International Private Limited to Shroff Wholesome Living Farms Private Limited as well as the Restructure of Capital of in form of Utilization of Security Premium Account of Priyal International Private Limited, the Applicant Demerged Company, as proposed between the company and its creditors.
7. 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 Page 5 of 9 HC-NIC Page 5 of 9 Created On Thu Jun 30 02:27:47 IST 2016 O/COMA/285/2016 ORDER 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 Registered Post, addressed to each of the Unsecured Creditors of the Applicant Company, at their last known address. The list of the Unsecured Creditors with their names and addresses shall be placed on record by the Applicant Company. A certificate shall be obtained from the Postal Dept. confirming the total number of dispatches so made.
8. 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 Page 6 of 9 HC-NIC Page 6 of 9 Created On Thu Jun 30 02:27:47 IST 2016 O/COMA/285/2016 ORDER Office of the Applicant Company and/or at its Advocate's office i.e. 301, Shivalik10, Opp. SBI Zonal Office, S. M. Road, Ambavadi, Ahmedabad 380 015 once each in the Indian Express, English daily and Sandesh, Gujarati daily (both Ahmedabad editions).
9. Shri Pravinbhai D. Majithia, the Director of the Applicant Company and failing him Shri Hasmukhbhai D. Majithia, the Authorised Officer of the Applicant Company, shall be the Chairman of the aforesaid meeting to be held on 28th July 2016 and in respect of any adjournment or adjournments thereof.
10. 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, Page 7 of 9 HC-NIC Page 7 of 9 Created On Thu Jun 30 02:27:47 IST 2016 O/COMA/285/2016 ORDER including an adjournment of the meetings, 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.
11. That the quorum for the said meetings shall be 5 (Five) for the meeting of Unsecured Creditors present in person or through authorized representative or through proxy.
12. 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.
13. That the value of the vote of each Creditor of the Company shall be as per the entries in the books of accounts of the Applicant Company and where the entries in the records are disputed, Page 8 of 9 HC-NIC Page 8 of 9 Created On Thu Jun 30 02:27:47 IST 2016 O/COMA/285/2016 ORDER the Chairman of the meeting shall determine the value or number for the purpose of the meeting and his decision in that behalf would be final.
14. 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.
15. The Application is hereby disposed of.
(R.M.CHHAYA, J.) mrp Page 9 of 9 HC-NIC Page 9 of 9 Created On Thu Jun 30 02:27:47 IST 2016