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Judgment
Santanu Kumar Mohapatra, Member (T)
This application has been jointly filed by the Applicant Companies under Sections 230 to 232 of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 and the National Company Law Tribunal Rules, 2016, duly supported by separate affidavits of the Applicant Companies, seeking appropriate orders/directions for dispensing with the respective meetings of the shareholders, secured creditors and unsecured creditors of both the companies, in connection with the proposed Scheme of Amalgamation as contemplated between the applicant companies. The said Scheme of Amalgamation (hereinafter referred to as the "Scheme") has been placed on record along with the joint application.
It is represented that the registered offices of both the applicant companies are situated in New Delhi and therefore the subject matter of the present joint application falls within the Jurisdiction of this Bench.
M/s. Orbitz India Services Private Limited (Transferor Company) was incorporated on 21.12.2012 under the provisions of the Companies Act, 1956. The present Authorised Share Capital of the Transferor Company is Rs. 1,00,00,000/- (Rupees One Crore only) divided in 10,00,000/- (Ten Lakh) Equity Shares of Rs. 10/- each. The Issued, Subscribed and Paid Up Capital of the company is Rs. 80,44,390/- (Rupees Eighty Lakh Forty Four Thousand Three Hundred Ninety only) divided into 8,04,439 (Eight Lakh Four Thousand Four Hundred Thirty Nine) Equity Shares of Rs. 10/- each fully paid-up. The registered office of the Company is situated at C/o Perfect Accounting Shared Services Pvt. Ltd. E-20 1ST & 2nd Floor, Hauz Khas, New Delhi-110016.
It is submitted that the transferor Company has two Equity Shareholders and all the equity shareholders have given their consent affidavits to the Scheme constituting 100% in value and 100% in number. The consent affidavits of each of the members have been placed on record. It is further represented that the transferor company has no secured creditor and 1 unsecured creditor. The certificates of chartered accountant in respect of creditors have also been placed on record. It is submitted that the sole unsecured creditor has given its consent affidavit in favour of the Scheme. As the company has no secured creditor, the requirement of convening meetings of secured creditors does not arise. In relation to the shareholders and unsecured creditors, the transferor company seeks dispensation from convening and holding of their respective meetings on the ground that all the shareholders and the unsecured creditor have given consent affidavits in favour of the Scheme.
M/s. Expedia Online Travel Services India Private Limited (Transferee Company) was incorporated on 10.04.2007 under provisions of the Companies Act, 1956. The present Authorised Share Capital of the Company is Rs. 50,00,000/- (Rupees Fifty Lakh only) divided in 5,00,000 (Five Lakh) Equity Shares of Rs. 10/- each. The present Issued, Subscribed and Paid Up Capital- Rs. 1,771,140/- (Rupees Seventeen Lakh Seventy One Thousand One Hundred Forty only) divided into 177,114 (One Lakh Seventy Seven Thousand One Hundred Fourteen) Equity Shares of Rs. 10/- each fully paid-up. The registered office of the Company is situated at C/o Perfect Accounting Shared Services Pvt. Ltd. E-20 1ST & 2nd Floor, Hauz Khas, New Delhi-110016.
It is submitted that the transferee Company has three Equity Shareholders and all the equity shareholders have given their consent affidavits to the Scheme constituting 100% in value and 100% in number. The consent affidavits of each of the members have been placed on record. It is further represented that the transferee company has no secured creditor and 52 unsecured creditors. The certificates of chartered accountant in respect of creditors have also been placed on record. It is submitted that out of 52 the unsecured creditors total 13 unsecured creditors have given their consent affidavits in favour of the Scheme constituting 91.56% in value of the total unsecured debt of the company. As the company has no secured creditor, the requirement of convening meeting of secured creditors does not arise. In relation to the shareholders and unsecured creditors, the transferee company seeks dispensation from convening and holding of their respective meetings on the ground that all the shareholders and 13 unsecured creditors constituting 91.56% in value have given consent affidavits in favour of the Scheme.
It is pertinent to state here that under Section 230 (9) of the Companies Act, 2013 the requirement of convening of meeting of the creditors can be dispensed with only if creditors having atleast 90% in value have given their consent affidavits in favour of the Scheme. In the present case since unsecured creditors with more than 90% in value have given their consent affidavits in favour of the Scheme in compliance of sub-section 9 of Section 230 of the Companies Act, 2013; the requirement of convening the meeting of unsecured creditors can be dispensed with.
We have perused the joint application and the connected documents / papers filed with the application including the Scheme of Amalgamation as contemplated between the Applicant companies.
It is seen that the board of directors of both the applicant companies vide separate meetings, held on 25.03.2019 respectively have unanimously approved the proposed Scheme of Amalgamation. Copies of such board resolutions passed by the board of directors have been placed on record by the applicant companies.
Both the applicants have filed their respective Memorandum of Associations and Articles of Associations. The applicants have also filed their latest audited financial statements for the year ending 31.03.2018 and unaudited balance sheet till 31.03.2019.
It is submitted that the proposed merger is sought to be made under the provisions of Section 230 to 232 of the Companies Act, 2013.
Both the applicant companies have submitted that no proceedings for inspection, inquiry or investigation under the provisions of the Companies Act, 2013 or under the provisions of the Companies Act, 1956 is pending against any of the applicant companies.
The certificates of respective statutory auditors of both the applicant companies have been placed on record confirming that the accounting treatment in the scheme is in conformity with Section 133 of the Companies Act, 2013.
Further, it has been stated in the application that the Scheme will be beneficial to all the applicant companies and their respective shareholders, employees, creditors and other stake holders.
Taking into consideration the application filed jointly by all the Applicant Companies the following directions are issued: -
A) In relation to the Transferor Company No. 1: -
(i) The meeting of Equity Shareholders is dispensed with as there are only 2 equity shareholders in the company and all of their consent affidavits in favour of the Scheme have been placed on record.
(ii) The meeting of secured creditors is also dispensed with because there is no secured creditor in the company and therefore, the requirement of convening meeting of secured creditors does not arise.
(iii) The meeting of unsecured creditors is also dispensed with as there is only 1 unsecured creditor in the company whose consent affidavit in favour of the Scheme has been placed on record.
B) In relation to the Transferee Company:-
(i) The meeting of Equity Shareholders is dispensed with as there are only 3 equity shareholders in the company and all of their consent affidavits in favour of the Scheme have been placed on record.
(ii) The meeting of secured creditors is dispensed with because there is no secured creditor in the company and therefore, the requirement of convening meeting of secured creditors does not arise.
(iii) The meeting of unsecured creditors is also dispensed with as there are 52 unsecured creditors in the company out of which 13 unsecured creditors constituting 91.56% in value have given their consent affidavits in favour of the Scheme.
In view of the above the present joint application stands allowed by dispensing with the meetings of shareholders and creditors of both the applicant companies.
The applicants are directed to serve notice of the proposed Scheme on the Regional Director, Ministry of Corporate Affairs, B-2 Wing, 2nd Floor, Paryavaran Bhavan, CGO Complex, New Delhi-110 003, Registrar of Companies at 4th Floor, IFCI Tower, 61, Nehru Place, New Delhi-110 019; the Official Liquidator, Lok -Nayak -Bhavan, 8th Floor, Khan Market, New Delhi -110 001; and the Income Tax Department, at DCIT (High Court Cell), Lawyer's Chamber Block No. 1, Room No. 428 & 429 Delhi High Court. The notices to Income Tax authorities shall disclose sufficient details like PAN card numbers, ward numbers and assessing officers so that proper reply may be filed.
Let copy of the order be served to the parties.