CP No.129 of2014(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CP No.129 of2014(O&M) Date of Decision : 05.08.2014 ELDECO MIDC SEZ Limited ....Non Petitioner/Transferor Company with ELDECO Infrastructure and Properties Limited .....Petitioner/Transferee Company CORAM : HON'BLE MR.JUSTICE MAHESH GROVER Present : Mr.Mukesh Sukhija and Mr.Yash Pal Gupta, Advocates for the petitioner Company MAHESH GROVER, J.
This is a petition under Section 391 (1) read with Section 100- 104 of the Companies Act, 1956 in connection with the proposed Scheme of Arrangement for reduction of capital of ELDECO MIDC SEZ Limited and Amalgamation of ELDECO MIDC SEZ Limited ( Tranferor Company) with ELDECO INFRASTRUCTURE AND PROPERTIES Limited (Transferee Company).A copy of the proposed Scheme of Arrangement has been appended alongwith the petition at Anneuxre P-1.
The Transferee Company is a public limited Company having its registered office in Faridabad and is thus having the competence to invoke the jurisdiction of this Court.
The registered office of the Transferor Company is situated within the national capital of Delhi for which a separate order for dispensing with the convening of the meetings of shareholders has already been obtained on 15.5.2014.
REKHA The copies of the Memorandum and Articles of Association, 2014.08.12 15:28 I attest to the accuracy and integrity of this document High Court Chandigarh CP No.129 of2014(O&M) 2 authorized, issued, subscribed and paid up capital have been set out in the petition at Annexures P-2 and P-10.
That similarly the audited accounts for the year ending 31.3.2013 of the Transferee Company have also been appended to the petition with a further statement that there has been no substantial change in the financial position of the Transferee Company.
It has been stated on affidavit that no proceedings under Section 235 to 251 of the Companies Act, 1956/ 210 of the Companies Act, 2013 are pending against the Transferee Company.
Lists of secured and unsecured creditors have also been set out in the petition itself.
A list of shareholders and the written consents and no objection certificates of the share holders have been enclosed with the petition.
It is also averred in the petition that out of 11 shareholders 9 have consented to the scheme consisting of 91.27%.
A prayer has been made for dispensation of the requirement of convening of meetings of the Shareholders and Creditors of the petitioner Transferee Company.
In view of the fact that written consents/no objection certificates given by nine out of 11 shareholders consisting of 99.21% capital of the Transferee Company and Creditors and the Scheme of Arrangement has been unanimously approved by the Board of Directors of the Transferee Company as also Transferor Company, the requirement of convening meeting of the shareholders of the applicant Transferee Company is dispensed with.
Similarly, in view of the fact that Transferee Company is a profit making Company having resources of 3,82,63,84,079 and cash REKHA201408.12 15:28 I attest to the accuracy and integrity of this document High Court Chandigarh CP No.129 of2014(O&M) 3 resources of Rs.1,22,14,798 and consequent upon the proposed reduction of the capital of the Transferee Company, the Transferor Company would become wholly owned subsidiary of the Transferee Company and there would be no arrangement warranting compromise with the secured creditors/unsecured creditors and also the fact that the arrangement does not involve reorganization of the shared capital of the Transferee Company.
The question of convening the meetings of the secured and unsecured creditors may not arise, therefore, convening of their meetings are also dispensed with.
The application is, therefore, allowed in the above stated terMs.Page no.24 has been unsigned for which prayer has been made to permit the learned counsel representing the petitioner to append his signatures.
Prayer is accepted.
A prayer has also been made for sanctioning of the Scheme by dispensing with the requirement of filing of a separate petition.
Reliance has been placed on some decisions on the same issue, which are as under:- In the matter of Nebula Motors LTD.2003 (5) ALD327 2003 45 SCL143AP The Learned Company Judge at AP High Court held that Coming to the facts of the instant case, the Scheme does not involve any reorganization or restructuring of the shares of the members of the Transferee company.
Therefore, the rights of the Transferee company have not been in any manner touched upon.
It is nothing but the amalgamation of the subsidiary company with the holding company for the convenience of the business and for efficient administration.
REKHA201408.12 15:28 I attest to the accuracy and integrity of this document High Court Chandigarh CP No.129 of2014(O&M) 4 Therefore, for the reasons discussed hereinabove, there is no need for the Transferee company to approach the court for necessary sanction of the Scheme.
In the matter of Mahaamba Investments Ltd V.
IDI LTD.(2001) 105 Comp.
Cas.16,33 SCL383of the Bombay High Court.
Herein the learned single judge of the Bombay High Court was of the view that where the proposed amalgamation is in respect of holding and subsidiary companies and the subsidiary company is sought to be merged with the holding company and when the members and the creditors of the Transferee company are not affected, the petition by Transferee company is not necessary.”
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Learned counsel for the petitioner Company has stated that application filed by Transferee Company for a fiRs.motion stands allowed by the High Court of Delhi where its registered office is situated.
Further, the applicant has also placed on record judgment dated 22.11.2013 of this Court passed in CP No.153 of 2013 in the matter of Liberty Retail Revolutions Limited with Liberty Shoes Limited wherein also filing of Second Motion Petition for sanctioning of the Scheme of Amalgamation was dispensed with.
It has also been urged by the learned counsel for the petitioner that the Scheme is likely to rationalize and streamline the functioning of the Company upon the sanctioning of the scheme of Arrangement.
In view of the aforesaid facts and no new shares are being issued and there is no compromise being entered with the Secured and Unsecured CreditORS.I am of the considered opinion that decisions taken in REKHA201408.12 15:28 I attest to the accuracy and integrity of this document High Court Chandigarh CP No.129 of2014(O&M) 5 aforesaid cases there is no reason to ask the petitioner to move second motion petition for sanctioning of the said scheme.
Ordered accordingly.
Publication in this regard be carried out in newspapers namely Indian Express (English) and Jan Satta (Hindi) both Delhi edition and official gazette of Govt.
of Haryana.
Formal orders in this regard be prepared.
A copy of the same be filed with the Registrar of Companies within 30 days from the receipt of the same.
Any person interested shall be at liberty to apply to the Court for any directions as per law.
Petition stands disposed of.
August 05, 2014 (MAHESH GROVER) rekha JUDGE REKHA201408.12 15:28 I attest to the accuracy and integrity of this document High Court Chandigarh