Gujarat High Court
Riddhi vs Blank on 30 June, 2011
Author: K.M.Thaker
Bench: K.M.Thaker
Gujarat High Court Case Information System
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COMA/360/2011 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
APPLICATION No. 360 of 2011
=========================================
RIDDHI
SIDDHI GLUCO BIOLS LTD
Versus
Blank
Name
=========================================
Appearance
:
MRS SWATI SOPARKAR for
Applicant
None for
Respondent
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 30/06/2011
ORAL
ORDER
1. Leave to amend is granted so as to place on record the resolution of Siwana Agrimarketing Limited giving consent to the proposed scheme.
2. Upon the application of the above-named De-merged company by summons dated 28th June 2011 filed under Sections 391 to 394 read with Sections 100 to 104 of the Companies Act, 1956, upon hearing Mrs. Swati Soparkar, learned advocate for the applicant - company and upon reading of the affidavit dated 27th June 2011 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. It is ordered -
[1] That separate meetings of the Secured Creditors, Unsecured Creditors and Equity Shareholders of the applicant - Company shall be convened and held at the Auditorium of Ahmedabad Textile Mills Association, Opp. City Gold Cinema, Ashram Road, Ahmedabad in the State of Gujarat on Tuesday, the 23rd day of August 2011 respectively at 10.00 a.m., 11.00 a.m., and 12.30 noon, 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. Manufacturing and Warehousing Business of Riddhi Sidhhi Gluco Biols Limited to Riddhi Siddhi Corn Processing Private Limited and Reduction of Share Capital of Riddhi Siddhi Gluco Biols Limited, the applicant De-merged Company, as proposed between the applicant - Company and its shareholders and creditors.
[2] 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 Equity Shareholders, Secured Creditors and Unsecured Creditors of the applicant - Company, at their last known address.
[3] 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 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, Near Old Excise Chowky, S. M. Road, Ambavadi, Ahmedabad 380 015 once each in the Indian Express, English daily and Sandesh, Gujarati daily (both Ahmedabad Edition).
[4] Shri Ganpatraj L. Chowdhary, the Director of the applicant - Company, and failing him Shri Sampatraj L. Chowdhary, the Director of the applicant - Company, shall be the Chairman of the aforesaid meetings to be held on 23rd August 2011 and in respect of any adjournment or adjournments thereof.
[5] 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 meetings including an amendment to the Scheme or resolution, if any, proposed at any of the meetings by any person(s) and to ascertain the decision of the meeting on a poll.
[6] That the quorum for the meetings of Equity Shareholders and Unsecured Creditors shall be 5 (five) members, whereas for the meeting of Secured Creditors, the quorum shall be 2 (two) of the Secured Creditors, present through authorized representative or through proxy.
[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.
[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 that of the creditor shall be as per the books of accounts of the company and where the entries in the records or registers are disputed, the Chairman of the meetings shall determine the value or number for the purposes of the meeting and his decision in that behalf would be final.
[9] 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.
[10] It has been pointed out that there is only one Preference Shareholder of the applicant - Company and the said shareholder has given its approval to the scheme in form of the consent letter which is placed on record as Annexure - F to the application. A certificate from a Chartered Accountant confirming the status of the Preference Shareholder as well as receipt of the written consent is also placed on record as Annexure - G to the said application. In view of the same, the dispensation of the meeting of the Preference Shareholder is sought and the same is hereby granted.
[11] It has been further submitted that the consequential reduction of 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 special resolution that may be passed at the meeting approving the scheme by the shareholders of the applicant - Company, shall be treated as the Special Resolution as required under Section 100 of the Companies Act, 1956. In view of this, the procedure prescribed under Sections 100 and 101 (2) of the Companies Act, 1956 are hereby dispensed with.
[12] Mrs.Swati Soparkar, learned counsel for the applicant has also submitted that as per the Rules, the company is required to send the notices under the certificate of posting. However, it has been informed by the postal department that the said system has been discontinued and now the only system available is to dispatch either book post or by registered post. It has been submitted that there is huge difference of costs between the two modes inasmuch as the cost towards the registered post would be about 3 to 4 times more than the expenditure towards the book post. It is also submitted that the practice of dispatching the notices and reports for the purpose of Annual General Meeting through book post is already being followed and the notices as well as the reports are being forwarded through book post. Thus, having regard to the element of costs and submissions by the learned counsel for the applicant - Company and taking into account the submissions that the practice of dispatching notices through book post is being followed, it appears appropriate to grant, as a special case and in view of special facts of this case, the permission, in the present case to dispatch the notice of propose meeting through book post. Hence, the permission is granted, as a special case and without forming precedent on condition that the company shall prepare list of the shareholders / addressees (which shall contain the details of names and complete addresses) to whom the notices would be dispatched and upon submitting all the covers containing the notice to the post office, the Company shall get the list authenticated / stamped by the concerned post office acknowledging the receipt of the equal numbers (as per the details in the list) of covers containing the notice and also a separate certificate from the In-charge Officer / Post Master of the concerned post office acknowledging the receipt of such number of covers and number of addressees and certifying the dispatch to the persons named in the list shall be obtained by the Company and both i.e. duly authenticated / stamped the list and the certificate shall be placed on record of the present application along with the affidavit of the concerned officer, who would carry out the entire process.
[13] The application stands disposed of.
[ K. M. THAKER, J. ] vijay Top