Gujarat High Court
Cadila vs Respondent(S) on 13 August, 2008
Author: C.K.Buch
Bench: C.K.Buch
Gujarat High Court Case Information System
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COMA/450/2008 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
APPLICATION No. 450 of 2008
=========================================================
CADILA
HEALTHCARE LIMITED - Applicant(s)
Versus
.
- Respondent(s)
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Appearance
:
MR
MIHIR THAKORE, SR.ADVOCATE WITH MR SANDEEP SINGHI FOR SINGHI & CO
for Applicant(s) : 1,
None for
Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE C.K.BUCH
Date
: 13/08/2008
ORAL
ORDER
Heard Shri Mihir Thakore, learned senior counsel appearing with Shri Sandeep Singhi for Singhi & Co. for applicant.
The affidavit of Shri Upen Shah, Company Secretary of the applicant-Company, along with the letters of all the secured creditors, tendered today by Shri Mihir Thakore, is taken on record.
By way of this application, the applicant has prayed for holding separate meetings of the Equity Shareholders and Unsecured Creditors of the applicant-Company for the purpose of considering and, if thought fit, approving with or without modification, the arrangement embodied in the Composite Scheme between Carnation Nutra-Analogue Foods Limited and Cadila Healthcare Limited and Zydus Hospitals and Medical Research Private Limited and their respective shareholders and creditors (Composite Scheme) and for issuing appropriate directions incidental for holding of such meetings. Though in the Company Application the applicant has prayed for holding a meeting of its Secured Creditors, the applicant by the affidavit of Shri Upen Shah dated 13th August 2008 tendered today, has prayed for dispensation of convening and holding meeting of the Secured Creditors as all the Secured Creditors have given their written consent to the Composite Scheme.
By the present Composite Scheme there would be reductions of Securities Premium Account including reduction pursuant to the utilization of Securities Premium Account to create international Business Development Reserve but the said reductions are integral part of the Composite Scheme and the applicant-Company has prayed for dispensing with following a separate procedure for the said reductions.
Upon hearing Shri Mihir Thakore, learned senior counsel and upon perusal of the application and supporting affidavit dated 11th August 2008 filed by Shri Upen Shah and the annexures referred to therein (Annexure-G being the copy of the Composite Scheme) and the affidavit dated 13th August 2008, it is directed as under
:
The meeting of the Secured Creditors of the applicant-Company be and is hereby dispensed with in view of the fact that the Secured Creditors of the applicant-Company have given their approval to the Composite Scheme. Publication of advertisement in the newspapers and the advertisement in Gujarat Government Gazette is dispensed with.
A meeting of the Equity Shareholders of the applicant-Company shall be convened and held at Thakorbhai Desai Hall, Near Law Garden, Ellisbridge, Ahmedabad-380006, on Thursday, the 18th day of September 2008 at 12-00 noon (1200 hrs.) for the purpose of considering, and if thought fit, approving with or without modification, the arrangement embodied in the Composite Scheme.
A meeting of the Unsecured Creditors of the applicant-Company shall be convened and held at Thakorbhai Desai Hall, Near Law Garden, Ellisbridge, Ahmedabad-380006, on Thursday, the 18th day of September 2008 at 02-00 p.m. (1400 hrs.) or immediately after the conclusion of the meeting of the Equity Shareholders of the applicant-Company (whichever is later) for the purpose of considering, and if thought fit, approving with or without modification, the arrangement embodied in the Composite Scheme.
At least 21 clear days before the day appointed for the meetings to be held as aforesaid, an advertisement convening the said meetings indicating the day, the date, the place and the time aforesaid and stating that copies of the Composite Scheme, the 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 or at the office of its Advocates, i.e. M/s. Singh & Co., 7-8, Premchand House Annexe, Ashram Road, Old High Court Way, Ahmedabad-380009, be inserted once in Indian Express, Ahmedabad Edition and Sandesh, Ahmedabad Edition. Publication of the advertisement in the Gujarat Government Gazette is dispensed with.
In addition, at least 21 clear days before the day appointed for the meetings to be held as aforesaid, an advertisement convening the said meetings indicating the day, the date, the place and the time aforesaid and stating that copies of the Composite Scheme, the statement required to be furnished pursuant to Section 393 of the Companies Act, 1956 and Form of Proxy, shall be sent by pre-paid letter post under the Certificate of Posting addressed to each of the Equity Shareholders and Unsecured Creditors of the applicant-Company at their respective registered or last known addresses. The Notice shall be sent to the Equity Shareholders of the applicant-Company with reference to the list of persons appearing on the record of the applicant-Company and its register as on 08th August 2008. The Notice shall be sent to the Unsecured Creditors of the applicant-Company with reference to the list of persons appearing on the record of the applicant-Company as on 31st July 2008.
The settling and/or approval of the advertisement, the form of Notice and the Statement to accompany the Notice by the Registrar of this Court is dispensed with.
Mr.Mukesh M. Patel, Director of the applicant-Company, and in his absence Mr.Humayun Dhanrajgir, Director of the applicant-Company and in his absence Mr.Apurva S. Diwanji, Director of the applicant-Company, shall be the Chairman of the aforesaid meetings to be held on Thursday, the 18th day of September 2008 and in respect of any adjournment or adjournments thereof.
The Chairman appointed for the aforesaid meetings shall issue the advertisement and send out the notices of the meetings referred to hereinabove. The Chairmen are free to avail the services of the applicant-Company or their officers or servants or agents or any other agency for carrying out the said direction. 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 aforesaid Composite Scheme or resolutions, if any, proposed at the aforesaid meetings by any person(s) and to ascertain the decision of the aforesaid meetings on the poll.
The quorum for the meeting of the Equity Shareholders shall be 5 persons present in person. The quorum for the meeting of the Unsecured Creditors shall be 5 persons present in person.
The voting by proxy be permitted, provided that the proxy in the prescribed form duly signed by the person entitled to attend and vote at the meeting, is filed with the applicant-Company at its Registered Office at ?SZydus Tower??, Satellite Cross Roads, Sarkhej-Gandhinagar Highway, Ahmedabad-380015, not later than 48 hours before the meeting.
The value of each Equity Shareholders and Unsecured Creditors shall be in accordance with the books of the applicant-Company and where the entries in the books are disputed, the Chairman shall determine the value for purposes of the meeting and his decision in that behalf shall be final.
It is further directed that the Chairman shall report to this Court the result of the said meetings within 14 (fourteen) days of the conclusion of the meetings and the said report shall be verified by his affidavit.
Shri Mihir Thakore, learned senior counsel appearing for the applicant-Company, has submitted that there would be reductions of Securities Premium Account, which shall be effected as an integral part of Composite Scheme itself by way of a composite order from this Court. Shri Thakore has further submitted that the Equity Shareholders of the applicant-Company are to consider the Composite Scheme in the meeting which includes the said reductions. As the procedure under Section 101 read with Section 78 of the Companies Act, 1956 being parimateria with the present proceedings, no separate procedure for reductions of Securities Premium Account are required to be followed. Shri Thakore has referred to Sections 100 and 101 of the Companies Act, 1956 and submitted that reductions contemplated in the Composite Scheme do not involve either diminution of liability in respect of unpaid share capital or payment to the Shareholders of paid-up share capital and do not in any manner affect the interest of Creditors and no meeting of Creditors is required to consider the said reductions. Shri Mihir Thakore has relied upon the order dated 31st January 2003 passed by this Court in Company Application No.30 of 2003 and the order dated 29th July 2008 passed by this Court in Company Application No.426 of 2008, wherein this Court has dispensed with the following a separate procedure for reduction of capital.
Upon hearing the submissions of Shri Thakore and upon considering the aforesaid orders cited by him, I am of the view that the meeting of Creditors for considering the aforesaid reductions is not required. I hold that no separate procedure is required to be followed for reductions of Securities Premium Account, as the same is part and parcel of the Composite Scheme.
In view of aforesaid, the present application stands disposed of accordingly.
(C.K. Buch, J) Aakar Top