East Bengal Investments Private Limited And Ors. vs Sungrowth Coke Private Limited

Narender Kumar Bhola, Member (T)

This is an application filled by the Applicant Companies under Section 230 to 232 and other applicable provision of the Companies Act, 2013 (for brevity "The Act") read with Companies (Compromises, Arrangements and Amalgamation) Rule, 2016 (for brevity "The Rules) in relation to the Scheme of amalgamation (for brevity the "SCHEME) proposed between the applicants. In terms of Sections 230 and 232 of the 2013 Act, following prayers have been made for orders: -

a) Pass Orders/directions dispensing with convening, holding and conducting of the meetings of Shareholders and Unsecured. Creditors of the Applicant Companies;

b) Alternate to prayer made in paragraph (a) above, pass Orders/directions, directing the Applicant Companies to issue notices and to convene, hold and conduct separate meetings of Shareholders and Unsecured Creditors of the Applicant Companies;

c) Pass Orders/directions appointing Chairperson and alternate Chairperson to conduct the separate meetings of Shareholders and Unsecured creditors of the Applicant Companies;

d) Pass Orders/directions dispensing with publication of the notice(s) in relation to convening of meeting by the Applicant Companies in the newspaper; and/or

e) Pass such other and further order(s) as may be deemed fit and proper in the facts and circumstances of this case.

An Affidavit in support of the application sworn for and on behalf of all Applicant Companies has been filed by one Mr. Amarjeet Singh Chawla being the authorized representative.

It is represented that the Scheme does not contemplate any corporate debt restructuring exercise as contemplated under Section 230 (2) of the Act. We have been taken through the averments made in the application as well as typed set of documents annexed there with. It is further represented that the application filled by the applicants is maintainable in view of the Rule 3(2) of the Rules and it is also represented that the Registered Office of the Applicant Companies are situated within the Territorial Jurisdiction of this Tribunal and fall within domain of Registrar of Companies, NCT of Delhi at New Delhi.

In relation to the Transferor Company No. 1, it has been represented that the Company has 2 Equity Shareholders, no Secured Creditor and 3 Unsecured Creditors. We are further apprised that through the affidavits, in relation to the Shareholders and Unsecured Creditors, Transferor Company No. 1 seeks direction for dispensing with holding of meetings for the purpose of obtaining their approval of the proposed Scheme.

In relation to the Transferor Company No. 2, it has been represented that the Company has 2 Equity Shareholders, no Secured Creditors and 2 Unsecured Creditors. We are further apprised that through the affidavits, in relation to the Shareholders and Unsecured creditors, Transferor Company No. 2 seeks direction for dispensing with holding of meeting for the purpose of obtaining their approval of the proposed Scheme.

In relation to the Transferor Company No. 3, it has been represented that the Company has 4 Equity Shareholders, no Secured Creditors and no Unsecured Creditors. We are further apprised that through the affidavits, in relation to the Shareholders and Unsecured creditors, Transferor Company No. 3 seeks direction for dispensing with holding of meetings for the purpose of obtaining their approval of the proposed Scheme.

In relation to the Transferor Company No. 4, it has been represented that the Company has 5 Equity Shareholders, no Secured Creditors and no Unsecured Creditors. We are further apprised that through the affidavits, in relation to the Shareholders and Unsecured Creditors, Transferor Company No. 4 seeks direction for dispensing with holding of meetings for the purpose of obtaining their approval of the proposed Scheme.

In relation to the Transferee Company, it has been represented that the Company has 13 Equity Shareholders, no Secured Creditors and 1 Unsecured' Creditor. We are further apprised that through the affidavits, in relation to the Shareholders and Unsecured Creditors, Transferee Company seeks direction for dispensing with holding of meetings for the purpose of obtaining their approval of the proposed Scheme.

The above application has been placed before us and this Tribunal proceeds to entertain the same. The Registered offices of the Applicant Companies are situated within New Delhi which are subject to the Territorial Jurisdiction of Registrar of Companies, NCT of Delhi at New Delhi as well as of this Tribunal.

We have pursued the application and the connected documents filled along with the Scheme of Amalgamation contemplated between the Companies.

EAST BENGAL INVESTMENTS PRIVATE LIMITED was incorporated under the Companies Act, 1956 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi. As on the date of the filling of this application, the Authorized Share Capital of the Applicant/Transferor Company No. 1 is Rs. 2,00,00,000/- (Rupees Two Crores only) divided into 20,00,000 (Twenty Lac) Equity Shares of Rs. 10/- (Rupees Ten only) each. As on the date of filling this application, the issued, subscribed and paid up Share Capital of the Applicant/Transferor Company No. 1 is Rs. 12,69,000 (Rupees Twelve Lacs and Sixty-Nine Thousands only) divided into 1,26,900 (One Lac Twenty Six Thousand and Nine Hundred) Equity Shares of Rs. 10/- (Rupees Ten only) each. Apart from the above, the Applicant/Transferor Company No. 1 has not issued any debentures and any other class of shares as on date.

HLKR TRADING PRIVATE LIMITED was incorporated under the Companies Act, 1956 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi. As on the date of the filling of this application, the Authorized Share Capital of the Applicant/Transferor Company 2 is Rs. 10,00,000/- (Rupees Ten Lacs only) divided into 1,00,000 (One Lac) Equity Shares of Rs. 10/- (Rupees Ten only) each. As on the date of filling this application, the issued, subscribed and paid up Share Capital of the Applicant/Transferor Company No. 2 is Rs. 10,00,000/-(Rupees Ten Lacs only) divided into 1,00,000 (One Lac) Equity Shares of Rs. 10/- (Rupees Ten only) each. Apart from the above, the Applicant/Transferor Company No. 2 has not issued any debentures and any other class of shares as on date.

UNIK SPRINGS (INDIA) PRIVATE LIMITED was incorporated under the Companies Act, 1956 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi. As on the date of the filling of this application, the Authorized Share Capital of the Applicant/Transferor Company No. 3 is Rs. 2,00,00,000/- (Rupees Two Crores only) divided into 20,00,000 (Twenty Lac) Equity Shares of Rs. 10/- (Rupees Ten only) each. As on the date of filling this application, the issued, subscribed and paid up Share Capital of the Applicant/Transferor Company No. 3 is Rs. 30,68,000/- (Rupees Thirty Lacs and Sixty Eight Thousand only) divided into 3,06,800 (Three Lac Six Thousand and Eight Hundred) Equity Shares of Rs. 10/- (Rupees Ten only) each. Apart from the above, Applicant/Transferor Company No. 3 has not issued any debentures and any other class of shares as on date.

SADJYOTI TRADERS PRIVATE LIMITED was incorporated under the Companies Act, 1956 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi. Subsequently, the Company has shifted its Registered Office from NCT of Delhi to Kolkata, West Bengal. Thereafter, the Company's Registered Office has been shifted from the State of West Bengal to National Capital Territory of Delhi vide order dated 07.01.2016 passed by the Regional Director, Eastern Region. As on the date of the filling of this application, the Authorized Share Capital of the Applicant/Transferor Company No. 4 is Rs. 8,00,000/- (Rupees Eight Lacs only) divided into 80,000 (Eighty Thousand) Equity Shares of Rs. 10/- (Rupees Ten only) each. As on the date of filling this application, the issued, subscribed and paid up Share Capital of the Applicant/Transferor Company No. 4 is Rs. 7,69,000/- (Rupees Seven Lacs and Sixty-Nine Thousands only) divided into 76,900 (Seventy Six Thousand and Nine Hundred only) Equity Shares of Rs. 10/- (Rupees Ten only) each. The Applicant/Transferor Company No. 4 has not issued any debentures and any other class of shares as on date.

SUNGROWTH COKE PRIVATE LIMITED was incorporated under the Companies Act, 1956 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi. As on the date of the filling of this application, The Authorized Share Capital of the Applicant/Transferee Company is Rs. 1,00,00,000/- (Rupees One Crore only) divided into 10,00,000 (Ten Lac) Equity Shares of Rs. 10/- (Rupees Ten only) each. As on the date of filling this application, the issued, subscribed and paid up Share Capital of the Applicant/Transferee Company is Rs. 95,44,100/-(Rupees Ninety-Five Lacs Forty-Four Thousand and One Hundred only) divided into 9,54,410 (Nine Lac Fifty Four Thousands & Four Hundred Ten Only) Equity Shares of Rs. 10/- (Rupees Ten only) each. Apart from the above, the Applicant/Transferee Company has not issued any debentures and any other class of shares as on date.

The Board of Directors of the Applicant Companies vide separate meetings held on 20.02.2019 and 21.02.2019 have unanimously passed resolutions and approved the proposed Scheme of Amalgamation as contemplated above and copies of resolutions have also been placed on record by the Companies.

Taking into consideration the application and the documents filed therewith, we propose to issue the following directions with respect to calling, convening and holding of the meetings of the Shareholders, Secured and Unsecured Creditors or dispensing with the same which are as follows:-

In relation to the Applicant/Transferor Company No. 1.

i) With Respect to the Shareholders:

(A) It is represented by the Applicant/Transferor Company No. 1 that all 2 Shareholders have already placed their consent-affidavits on record. The meeting of Shareholders of Transferor Company No. 1 is directed to be held at 5, Village Tajpur, Badarpur, New Delhi - 110014 on 29th June 2020 at 12:00 PM. The Quorum of the meeting shall be 2 in Number present in person.

(B) Ms. Prachi Johari, Advocate (Mobile No. 7828421815) is appointed as the Chairperson, Ms. Shivini Gupta, Advocate (Mobile No. 8840769824) is appointed as Alternate Chairman and Ms. Neha Basin, Practicing Company Secretary (Mobile No. 8527801873) as Scrutinizer for the meetings of the Shareholders of the Transferor Company No. 1 in terms of the direction issued herein.

(C) In case the quorum as noted above for the aforesaid meeting are not present at the meeting, then the meeting shall be adjourned by half an hour, thereafter the persons present and voting shall be deemed to constitute the quorum. The Chairperson and alternate Chairperson appointed herein along with the Scrutinizer shall ensure that the proxy Registers are properly maintained.

(D) The Fees of the Chairperson for the aforesaid meeting shall be Rs. 1,00,000/-, The Fees of the Alternate Chairperson Shall be Rs. 75,000/- and the Fees of the Scrutinizer shall be Rs. 75,000/-in addition to meeting their incidental expenses. The Chairperson will file its report within a week from the date of holding of the aforesaid meeting.

(E) That the Transferee Company shall publish advertisement with a gap of at Least 30 days before the aforesaid meetings, indicating the day, date and the place and time as aforesaid, to be published in Delhi Editions of "Business Standard" English edition and "Business Standard" Hindi Edition stating that the Copies of the Scheme, the Explanatory Statement required to be furnish pursuant to Section 230 of the Companies Act, 2013 and the form of proxy shall be provided free of charge at the Registered office of the Transferee Company.

(F) Voting Shall be allowed on the proposed Scheme by Voting in person, by proxy, through Postal ballot or through electronic means as may be applicable for the meeting of Shareholders of Transferee Company in terms of the provisions of the Companies Act, 2013 and Rules framed there under.

(ii) With Respect to the Secured Creditors:

Since, it is represented by the Applicant/Transferor Company No. 1 that there is no secured creditor in the Company. Therefore, the necessity of convening and holding a meeting is dispensed with.

(iii) With Respect to the Unsecured Creditors:

Since, it is represented by the Applicant/Transferor Company No. 1 that there are 3 Unsecured Creditors in the Company. It is represented by the Company that all the 3 Unsecured Creditors have already placed their consent-affidavits on record. Therefore, the necessity of convening and holding a meeting is dispensed with.

In relation to the Applicant/Transferor Company No. 2.

(i) With Respect to the Shareholders:

(A) It is represented by the Applicant/Transferor Company No. 2 that all 2 Shareholders have already placed their consent-affidavits on record. The meeting of Shareholders of Transferor Company No. 2 is directed to be held at the Registered Office situated at 5, Village Tajpur, Badarpur, New Delhi - 110014 on 29th June 2020 at 1:00 PM. The Quorum of the meeting shall be 2 in Number present in person.

(B) Ms. Prachi Johari, Advocate (Mobile No. 7828421815) is appointed as the Chairperson, Ms. Shivini Gupta, Advocate (Mobile No. 8840769824) is appointed as Alternate Chairman and Ms. Neha Basin, Practicing Company Secretary (Mobile No. 8527801873) as Scrutinizer for the meetings of the Shareholders of the Transferor Company No. 2 in terms of the direction issued herein.

(C) In case the quorum as noted above for the aforesaid meeting are not present at the meeting, then the meeting shall be adjourned by half an hour, thereafter the persons present and voting shall be deemed to constitute the quorum. The Chairperson and alternate Chairperson appointed herein along with the Scrutinizer shall ensure that the proxy Registers are properly maintained.

(D) The Fees of the Chairperson for the aforesaid meeting shall be Rs. 1,00,000/-, The Fees of the Alternate Chairperson Shall be Rs. 75,000/- and the Fees of the Scrutinizer shall be Rs. 75,000/-in addition to meeting their incidental expenses. The Chairperson will file its report within a week from the date of holding of the aforesaid meeting.

(E) That the Transferor Company No. 2 shall publish advertisement with a gap of at Least 30 days before the aforesaid meetings, indicating the day, date and the place and time as aforesaid, to be published in Delhi Editions of "Business Standard" English edition and "Business Standard" Hindi Edition stating that the Copies of the Scheme, the Explanatory Statement required to be furnish pursuant to Section 230 of the Companies Act, 2013 and the form of proxy shall be provided free of charge at the Registered office of the Transferee Company.

(F) Voting Shall be allowed on the proposed Scheme by Voting in person, by proxy, through Postal ballot or through electronic means as may be applicable for the meeting of Shareholders of Transferee Company in terms of the provisions of the Companies Act, 2013 and Rules framed there under.

(ii) With Respect to the Secured Creditors:

Since, it is represented by the Applicant/Transferor Company No. 2 that there is no secured creditor in the Company, the necessity of convening and holding a meeting is dispensed with.

(iii) With Respect to the Unsecured Creditors:

Since, it is represented by the Applicant/Transferor Company No. 2 that there are 2 Unsecured Creditors in the Company and they have already placed their consent-affidavits on record. Therefore, the necessity of convening and holding a meeting is dispensed with.

In relation to the Applicant/Transferor Company No. 3.

(i) With Respect to the Shareholders:

(A) It is represented by the Applicant/Transferor Company No. 3 that all 4 Shareholders have already placed their consent-affidavits on record. The meeting of Shareholders of Transferor Company No. 3 is directed to be held at 5, Village Tajpur, Badarpur, New Delhi - 110014 on 29th June 2020 at 2:30 PM. The Quorum of the meeting shall be 2 in Number present in person.

(B) Ms. Prachi Johari, Advocate (Mobile No. 7828421815) is appointed as the Chairperson, Ms. Shivini Gupta, Advocate (Mobile No. 8840769824) is appointed as Alternate Chairman and Ms. Neha Basin, Practicing Company Secretary (Mobile No. 8527801873) as Scrutinizer for the meetings of the Shareholders of the Transferor Company No. 3 in terms of the direction issued herein.

(C) In case the quorum as noted above for the aforesaid meeting are not present at the meeting, then the meeting shall be adjourned by half an hour, thereafter the persons present and voting shall be deemed to constitute the quorum. The Chairperson and alternate Chairperson appointed herein along with the Scrutinizer shall ensure that the proxy Registers are properly maintained.

(D) The Fees of the Chairperson for the aforesaid meeting shall be Rs. 1,00,000/-, The Fees of the Alternate Chairperson Shall be Rs. 75,000/- and the Fees of the Scrutinizer shall be Rs. 75,000/- in addition to meeting their incidental expenses. The Chairperson will file its report within a week from the date of holding of the aforesaid meeting.

(E) That the Transferor Company No. 3 shall publish advertisement with a gap of at Least 30 days before the aforesaid meetings, indicating the day, date and the place and time as aforesaid, to be published in Delhi Editions of "Business Standard" English edition and "Business Standard" Hindi Edition stating that the Copies of the Scheme, the Explanatory Statement required to be furnish pursuant to Section 230 of the Companies Act, 2013 and the form of proxy shall be provide free of charge at the Registered office of the Transferee Company.

(F) Voting Shall be allowed on the proposed Scheme by Voting in person, by proxy, through Postal ballot or through electronic means as may be applicable for the meeting of Shareholders of Transferee Company in terms of the provisions of the Companies Act, 2013 and Rules framed there under.

(ii) With Respect to the Secured Creditors:

Since, it is represented by the Applicant/Transferor Company No. 3 that there are no secured creditors in the Company, the necessity of convening and holding a meeting is dispensed with.

(iii) With Respect to the Unsecured Creditors:

Since, it is represented by the Applicant/Transferor Company No. 3 that there are no unsecured creditors in the Company, therefore the necessity of convening and holding a meeting is dispensed with.

In relation to the Applicant/Transferor Company No. 4.

(i) With Respect to the Shareholders:

(A) It is represented by the Applicant/Transferor Company No. 4 that all 5 Shareholders have already placed their consent-affidavits on record. The meeting of Shareholders of Transferor Company No. 4 is directed to be held at 5, Village Tajpur, Badarpur, New Delhi - 110014 on 29th June 2020 at 4.00 PM. The Quorum of the meeting shall be 4 in Number present in person.

(B) Ms. Prachi Johari, Advocate (Mobile No. 7828421815) is appointed as the Chairperson, Ms. Shivini Gupta, Advocate (Mobile No. 8840769824) is appointed as Alternate Chairman and Ms. Neha Basin, Practicing Company Secretary (Mobile No. 8527801873) as Scrutinizer for the meetings of the Shareholders of the Transferor Company No. 1 in terms of the direction issued herein.

(C) In case the quorum as noted above for the aforesaid meeting are not present at the meeting, then the meeting shall be adjourned by half an hour, thereafter the persons present and voting shall be deemed to constitute the quorum. The Chairperson and alternate Chairperson appointed herein along with the Scrutinizer shall ensure that the proxy Registers are properly maintained.

(D) The Fees of the Chairperson for the aforesaid meeting shall be Rs. 1,00,000/-, The Fees of the Alternate Chairperson Shall be Rs. 75,000/- and the Fees of the Scrutinizer shall be Rs. 75,000/-in addition to meeting their incidental expenses. The Chairperson will file its report within a week from the date of holding of the aforesaid meeting.

(E) That the Transferor Company No. 4 shall publish advertisement with a gap of at Least 30 days before the aforesaid meetings, indicating the day, date and the place and time as aforesaid, to be published in Delhi Editions of "Business Standard" English edition and "Business Standard" Hindi Edition stating that the Copies of the Scheme, the Explanatory Statement required to be furnish pursuant to Section 230 of the Companies Act, 2013 and the form of proxy shall be provide free of charge at the Registered office of the Transferee Company.

(F) Voting Shall be allowed on the proposed Scheme by Voting in person, by proxy, through Postal Ballot or through electronic means as may be applicable for the meeting of Shareholders of Transferee Company in terms of the provisions of the Companies Act, 2013 and Rules framed there under.

(ii) With Respect to the Secured Creditors:

Since, it is represented by the Applicant/Transferor Company No. 4 that there are no secured creditors in the Company, the necessity of convening and holding a meeting is dispensed with.

(iii) With Respect to the Unsecured Creditors:

Since, it is represented by the Applicant/Transferor Company No. 4 that there are no Unsecured Creditors in the Company, therefore the necessity of convening and holding a meeting is dispensed with.

In relation to the Applicant/Transferee Company

(i) With Respect to the Shareholders:

(A) It is represented by the Applicant/Transferee that all 13 Shareholders have already placed their consent-affidavits on record. The meeting of Shareholders of Transferee Company is directed to be held at 5, Village Tajpur, Baclarpur, New Delhi -110014 on 29th June 2020 at 5.00 PM. The Quorum of the meeting shall be 10 in Number present in person.

(B) Ms. Prachi Johari, Advocate (Mobile No. 7828421815) is appointed as the Chairperson, Ms. Shivini Gupta, Advocate (Mobile No. 8840769824) is appointed as Alternate Chairman and Ms. Neha Basin, Practicing Company Secretary (Mobile No. 8527801873) as Scrutinizer for the meetings of the Shareholders of the Transferee Company in terms of the direction issued herein.

(C) In case the quorum as noted above for the aforesaid meeting are not present at the meeting, then the meeting shall be adjourned by half an hour, thereafter the persons present and voting shall be deemed to constitute the quorum. The Chairperson and alternate Chairperson appointed herein along with the Scrutinizer shall ensure that the proxy Registers are properly maintained.

(D) The Fees of the Chairperson for the aforesaid meeting shall be Rs. 1,00,000/-, The Fees of the Alternate Chairperson Shall be Rs. 75,000/- and the Fees of the Scrutinizer shall be Rs. 75,000/- in addition to meeting their incidental expenses. The Chairperson will file its report within a week from the date of holding of the aforesaid meeting.

(E) That the Transferee Company shall publish advertisement with a gap of at least 30 days before the aforesaid meetings, indicating the day, date and the place and time as aforesaid, to be published in Delhi Editions of "Business Standard" English edition and "Business Standard" Hindi Edition stating that the Copies of the Scheme, the Explanatory Statement required to be furnish pursuant to Section 230 of the Companies Act, 2013 and the form of proxy shall be provide free of charge at the Registered office of the Transferee Company.

(F) Voting Shall be allowed on the proposed Scheme by Voting in person, by proxy, through Postal ballot or through electronic means as may be applicable for the meeting of Shareholders of Transferee Company in terms of the provisions of the Companies Act, 2013 and Rules framed there under.

(ii) With Respect to the Secured Creditors:

Since, it is represented by the Applicant/Transferee Company that there are no secured creditors in the Company, the necessity of convening and holding a meeting is dispensed with.

(iii) With Respect to the Unsecured Creditors:

Since, it is represented by the Applicant/Transferee Company that there is 1 Unsecured Creditor in the Company. It is represented by the Company that the Unsecured Creditor has already placed their consent-affidavit on record. Therefore, the necessity of convening and holding a meeting is dispensed with.

Notice of the application shall also be served on the Regional Director, Ministry of Corporate affairs, B-2 Wing, 2nd Floor, Paryavaran Bhavvan, CGO Complex, New Delhi-110003; Registrar of Companies at 4th Floor, IFCI Tower, 61, Nehru Place, New Delhi-110019, the Official Liquidator, Lok Nayak Bhawan, 8th Floor, Khan Market, New Delhi-110001, the office of the Income Tax Department, Income Tax officer, Circle, Faridabad, the Income Tax Department, Income Tax officer, Additional Commissioner of Income Tax, Special Range-4, Central Revenue Building, IP Estate, New Delhi-110002, the Notices to Income Tax authorities shall disclose sufficient details like PAN Card numbers, Ward Numbers and Assessing Officers so that timely and proper reply may be filled