Gujarat High Court
Omkar Textile Mills Private Limited vs Respondent(S) on 27 January, 2014
Author: R.M.Chhaya
Bench: R.M.Chhaya
O/COMA/23/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY APPLICATION NO. 23 of 2014
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OMKAR TEXTILE MILLS PRIVATE LIMITED....Applicant(s)
Versus
.....Respondent(s)
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Appearance:
MR TUSHAR P HEMANI, ADVOCATE for the Applicant(s) No. 1
MS VAIBHAVI K PARIKH, ADVOCATE for the Applicant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 27/01/2014
ORAL ORDER
1. The present application has been preferred by M/s.Omkar Textile Mills Private Limited (the De- merged Company) under Sections 391 to 394 read with Sections 100 to 104 of the Companies Act, 1956 in a proposed Scheme of Arrangement in the nature of De- merger and Transfer of the De-merged Undertakings viz. Narol and Naroda Units of M/s.Omkar Textile Mills Private Limited to Aarnav Texfab Private Limited and Raghav Creations Private Limited respectively and Restructure of Capital of these Companies.
2. Heard Ms.Vaibhavi Parikh, learned advocate for the applicant Company. It is submitted that all the Preference Shareholders and Unsecured Loan Creditors of the applicant De-merged Company have given their Page 1 of 6 O/COMA/23/2014 ORDER approval to the Scheme in form of consent letters, which are placed on record as Annexure 'D' and 'E' to the application. The certificate from the Chartered Accountant confirming the status of the Preference Shareholders and Unsecured Loan Creditors of the Company as well as receipt of written consent from all the Shareholders and Unsecured Loan Creditors are also placed on record as Annexure 'F', collectively. In view of the same, the dispensation of the meetings of the Preference Shareholders and Unsecured Loan Creditors is sought and is hereby granted.
3. Upon an application of the above named De-merged Company by summons dated 23.01.2014, and upon hearing the learned advocate for the applicant Company and perusal of the affidavit dated 18.01.2014 filed in support of the Judge's Summons for directions, and other relevant documents attached thereto, including the contents of the affidavit filed by the deponent (Annexure 'C' being a copy of the proposed Scheme of Arrangement).
4. Separate meetings of the Equity Shareholders, Secured Creditors and Unsecured Creditors for Trade and Expenses of the applicant De-merged Company shall be convened and held at Survey No.6/1 and 6/2, Matan Gali, Narol-Vatva Road, Narol, Ahmedabad - 382 405 in the State of Gujarat, on Thursday, the 20 th Day of March, 2014 at 11:30 am, 12:30 noon and 1:30 pm respectively, for the purpose of considering and, if Page 2 of 6 O/COMA/23/2014 ORDER thought fit, approving with or without modification(s), the proposed Scheme of Arrangement in the nature of De-merger and Transfer of Narol and Naroda Units of M/s.Omkar Texfab Mills Private Limited to Aarnav Texfab Private Limited and Raghav Creations Private Limited respectively and restructure of Capital of these companies as proposed, between the applicant Company and its Members and Creditors.
5. That at least 21 clear days before the meetings be held, as aforesaid, a 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, a 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 Book Post, addressed to each of the Equity Shareholders, Secured Creditors and Unsecured Creditors for Trade and Expenses of the applicant Company, at their last known address. The said list of the Shareholders and 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.
6. That at least 21 clear days before the meetings to be held as aforesaid, a notice convening the said Page 3 of 6 O/COMA/23/2014 ORDER meetings indicating the day, the date, the place and the time as aforesaid be published, stating that copies of the Scheme of Amalgamation, 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 from the Registered Office of the applicant Company and/or at its advocate's office i.e. 103, 2nd Floor, Shanay-I, Opp.Shivalik Plaza, Near Ahmedabad Management Association, IIM Road, Ambawadi, Ahmedabad - 380 015, once each in Indian Express, English Daily and Jansatta-Loksatt, Gujarati Daily both Ahmedabad editions.
7. Shri Sunil Poddar, practicing Chartered Accountant and failing him Shri Umesh Ved, practicing Company Secretary shall be the Chairman of the aforesaid meetings to be held on 20 th March 2014 and in respect of any adjournment or adjournments thereof.
8. The Chairman appointed for the aforesaid meetings shall issue advertisement 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 of Resolution, if any, proposed at any of the meetings Page 4 of 6 O/COMA/23/2014 ORDER by any person(s); adjourning any of the meetings to another day, if so required and to ascertain the decision of the meetings on a poll.
9. The quorum for the meeting of the Equity Shareholders shall be 3 (three) Members present in person or by proxy, of the Secured Creditors shall be 2 (two) Authorized Representatives present in person or by proxy and of the Unsecured Creditors for Trade and Expenses shall be 5 (five) Authorized Representatives present in person or by proxy.
10. 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 Authorized Representative, is filed with the applicant Company at its Registered Office at Ahmedabad, not later than 48 hors before the said meetings.
11. The value of the vote of each Shareholders and Creditors of the Company shall be as per the entries in the books of accounts of the Company and where the entries in the records or books are disputed, the Chairman of the meetings shall determine the value, or number, for the purposes of the meetings and his decision in that behalf would be final.
12. The Charmian shall 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.
Page 5 of 6O/COMA/23/2014 ORDER 13. 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 shareholders 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 approval given by the Equity Shareholders of the applicant Company at the aforesaid meeting, 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.
14. The Company application is, hereby, disposed of.
(R.M.CHHAYA, J.) Suchit Page 6 of 6