Karnataka High Court
Dtdc Express Limited vs Nil on 19 February, 2016
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY 2016
BEFORE
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
COMPANY PETITION NO.250/2015
C/W
COMPANY PETITION NO.187 /2015
IN COMPANY PETITION NO.250/2015
BETWEEN:
DTDC Express Limited
An existing Company within the
meaning of the Companies Act, 1956
Having its registered office at DTDC House
No.3, Victoria Road
Bengaluru-560 047.
Karnataka, India
Represented by its authorized
Signatory Mr. Surendra Ghosh. ... PETITIONER
(By Sri V J Achalanand, Adv.
for M/s Khaitan and Co.)
AND:
Nil. ....RESPONDENT
(By Smt Prema Hatti, CGC for ROC)
IN COMPANY PETITION NO.187/2015
BETWEEN:
DPD India Private Limited
An existing Company within the
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meaning of the Companies Act, 1956
Having its registered office at DTDC House
No.3, Victoria Road
Bengaluru-560 047.
Karnataka, India
Represented by its authorized
Signatory Mr. Suresh Kumar Bansal. ... PETITIONER
(By Sri V J Achalanand, Adv.
for M/s Khaitan and Co.)
AND:
Nil. ....RESPONDENT
(By Sri K S Mahadevan, Adv. for O.L.
Smt Prema Hatti, CGC for ROC)
These Company Petitions are filed under Section 391
to 394 of the Companies Act, 1956, praying that the Scheme
of Amalgamation mentioned in paragraph 2 of this Petition
being Annexure "A" hereto be sanctioned by this Hon'ble
Court to be operative with effect from the Appointed dated
and shall be binding from the Effective dated; and etc.,
These Company Petitions coming on for Orders this
day, the Court made the following:
ORDER
Company Petition No.250/2015 is filed by transferee company and Company Petition No.187/2015 is filed by transferor company. Both the petitions are filed under Sections 391 to 394 of the Companies Act, 1956 seeking sanction of the scheme.
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2. Brief facts averred in the petitions are as under:
Transferor company was incorporated on the 12.10.1984 under the provisions of the Companies Act, 1956 as a private company limited by shares by the name and style of "DPD India Private Limited". A copy of the memorandum and articles of association of the Transferor Company now in force is produced as per Annexure-'B'. The registered office of the transferor company is situated at DTDC House, No.3, Victoria Road, Bengaluru-560 047, in the State of Karnataka, India. The authorized share capital of the transferor company is Rs.1,00,00,000/- divided into 10,00,000 equity shares of Rs.10/- each. The issued, subscribed and paid up share capital of the transferor company is Rs.3,75,050/- divided into 37,505 equity shares of Rs.10/- each fully paid up. The entire equity shares are held by GeoPost SA and beneficially by Mr Maxime Tupin, on behalf of GeoPost SA. The latest audited annual accounts of the transferor company for the financial year ended 31.3.2014 is produced as per Annexure-'C'. The transferor company is engaged in the business of inter alia providing business to business, domestic and international parcel and express deliver services.4
3. The Transferee Company was incorporated on 26.7.1990, as a private company limited by shares under the provisions of the Companies Act, 1956 by the name and style of "DTDC Courier and Cargo Private Limited" and subsequently with effect from 14.12.2001, the transferee company was converted into a public company and its name was changed to "DTDC Courier and Cargo Limited." Subsequently, with effect from 3.3.2015, the name of the transferee company was again changed to "DTDC Express Limited". A copy of the memorandum and articles of association of the transferee company now in force is produced as per Annexure-'D' wherein the objects have been set out in the memorandum of association of the transferee company. The registered office of the transferee company is situated at DTDC House, No.3, Victoria Road, Bengaluru- 560 047, Karnataka, India. The authorized share capital of the transferee company is Rs.20,00,00,000/- divided into 2,00,00,000 equity shares of Rs.10/- each. The issued, subscribed and paid up share capital of the Transferee Company is Rs.10,98,31,220/- divided into 1,09,83,122 equity shares of Rs.10/- each, fully paid up. The latest 5 audited annual accounts of the Transferee Company for the financial year ended 31.3.2014 is produced as per Annexure- 'E'. The transferee company is engaged, inter alia, in the business of providing courier service, cargo service, road transport service, water transport service and air service for goods.
4. The Board of Directors of the transferor company and the transferee company have at their respective meetings by resolutions on 2.6.2015 passed unanimously and approved the said scheme of Amalgamation and the copies of which are produced as per Annexures-'F' and 'F-1'. The circumstances and/or reasons which justify and/or necessitate the proposed scheme of amalgamation and some of the major benefits which will accrue are mentioned at paragraph 7 of the petition. The instant scheme of amalgamation embodies the amalgamation between the transferor company and the transferee company and their respective shareholders. No compromise or arrangement is proposed with any creditors of the transferor company. No reduction in the quantum or change in terms and conditions of the liabilities, debts, duties and obligations owed by the 6 transferor company to its creditors is proposed or will result consequent to the scheme.
5. The transferor company had filed C.A. No.549/2015 seeking for directions and this Court by order dated the 21.7.2015 dispensed with the convening of the meetings of creditors and shareholders. Since the transferor company has only one unsecured creditor having an outstanding amount of Rs.27,48,964/- and had consented to the waiver of the meeting by their letter to the transferor company does not have any secured creditor in respect of which the chartered accountant's certificate was produced along with the application. Thereafter, Company Petition No. 187 of 2015 has been filed by the Transferor Company.
6. The Transferee Company had filed C.A. No.550/2015 seeking for directions and this Court by order dated the 21.7.2015 dispensed with the convening of meetings of the three secured creditors since they had extended consent in writing to the proposed scheme. 7
7. Further, this Court directed for the holding of the meetings of the equity shareholders and unsecured creditors of the transferee company. Accordingly, on the 7.9.2015, the said meetings of the equity shareholders and unsecured creditors of the transferee company were duly held at the registered office of the transferee company. The meeting of the equity shareholders was attended personally or by proxy by 45 equity shareholders of the Transferee Company holding 97.89% of the paid up equity share capital. The meeting of the unsecured creditors was attended personally or by proxy by 182 unsecured creditors of the transferee company entitled together to debts of the value of Rs.10,60,84,162/- from the transferee company as on 31.3.2015. Both the said meetings unanimously approved the Scheme of Amalgamation without any modification.
8. The Chairman appointed by this Court of the aforesaid meetings Mr Surendra Ghosh has reported the results thereof by filing the chairman's report which has been accepted by this Court by order dated 9.10.2015. Pursuant to the filing of the petitions by the transferor company and transferee company, notice of petitions was 8 advertised in English daily newspaper "the Hindu" and Kannada daily newspaper "Udayavani" both dated 18.11.2015 and no objections/oppositions have been received till date. Pursuant to the receipt of notice issued by this Court, the Regional Director, Ministry of Corporate Affairs, Southern-East Region acting through Registrar of Companies, Karnataka, has filed affidavit with no adverse observations to the Scheme. Further, the Chartered Accountant appointed by this Court filed report which has been examined by the Official Liquidator who has also filed independent report (OLR) stating that the affairs of the transferor company have not been conducted in a prejudicial manner. Therefore, on these facts and also the documents produced, the petitioners-companies have sought for sanction of approval of the Scheme of Amalgamation.
9. Looking to the materials placed on record and also the observations made by the Registrar of Companies who filed the affidavit on behalf of the Regional Director, no objections have been raised. Even the Official Liquidator has also submitted that the proceedings of the transferor company are not at all conducted in a manner which affects 9 the interest of the public or the members of the said companies. In spite of taking paper publications in respect of the instant petitions, no persons interested in the affairs of the companies or no members have raised any sort of objections for the Scheme of Amalgamation. The contentions raised by the petitioners in both the petitions are supported by the documentary evidence. Therefore, the petitioners in both the petitions have made out the case for allowing petitions.
10. Accordingly, both the petitions are allowed. The Scheme of Amalgamation proposed by the Companies is sanctioned so as to bind the shareholders, members and creditors of transferor company as well as the transferee company.
11. In view of sanction of the Scheme of Amalgamation, the transferor company is ordered to be dissolved instead of the process of winding up. 10
12. Copy of this order shall be produced before the Registrar of Companies within 30 days from the date of receipt of a copy of this order.
Sd/-
JUDGE Cs/-
CT-SG