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Judgment
Hemant K. Sarangi, 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 Arrangement as contemplated between the
applicant companies. The said Scheme of Arrangement (hereinafter referred to as the “Schemeâ€) has been placed on record along with the joint
application.
It is represented that the registered offices of all the applicant companies are situated in New Delhi and therefore the subject matter of this joint
application falls within the Jurisdiction of this Bench.
M/s Spectra Products Private Limited (Demerged Company) was incorporated on 05.12.1991 under the provisions of the Companies Act, 1956.
The present Authorized Share Capital of the Demerged Company is Rs. 2,00,00,000/- divided into 20,00,000 Equity Shares of Rs. 10/- each. The
present Issued, Subscribed and paid-up Share Capital of the Company is Rs.63,57,010/- divided into 6,35,701 Equity Shares of Rs.10/-each. The
registered office of the Company is situated at 824, Vikas Deep Building, District Centre, Laxmi Nagar, New Delhi-110092.
The main objects of the Demerged Company as set out in the Memorandum of Association are as follows:
• To carry on the business of manufacturers, fabricators, assemblers, importers, exporters, buyers, sellers, consultants and dealers of automobile
products, engineering products and their accessories, spare parts and components thereof.
• To import, export, buy, sell or otherwise deal in merchandise and articles of all kinds and to carry on business as merchants, importers, exporters.
It is submitted that the Demerged Company has seven 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 demerged company has no secured creditor and 47 unsecured creditors. The certificates of chartered accountant in respect of
creditors have also been placed on record. It is submitted that the one unsecured creditor having 91.83% in value of total unsecured debt has given its
consent affidavit in favour of the Scheme. Fulfilling criteria as required under Section 230 (9) of the Act As the company has no secured creditor, the
requirement of convening meetings of secured creditor does not arise. In relation to the shareholders and unsecured creditors, the demerged company
seeks dispensation from convening and holding of their respective meetings on the ground that all the shareholders and one unsecured creditor having
91.83% in value of total unsecured debt have given consent affidavits in favour of the Scheme. Needless to say, that under sub-section 9 of Section
230 of Companies Act, meeting of creditors can be dispensed with if creditors having at least 90% in value agree by way of consent affidavit in
favour of the Scheme.
M/s Vijay Investments Private Limited (Resulting Company 1), bearing CIN U65999DL2019PTC349922, was incorporated on 10.05.2019, under
provisions of the Companies Act, 2013 and presently having its registered office at 824, Vikas Deep Building, District Centre, Laxmi Nagar, New
Delhi-10092. The present Authorized Share Capital of the Transferee Company is Rs.1,00,000/- divided into 10,000 Equity Shares of Rs. 10/- each.
The present Issued, Subscribed and paid-up Share Capital of the Company is Rs. 1,00,000/- divided into 10,000 Equity Shares of Rs. 10/- each.
The main objects of the Resulting Company 1 as set out in the Memorandum of Association are:
• To invest in shares and securities including listed companies as holding of the same.
It is submitted that the Resulting Company 1 has two Equity Shareholders and one of the equity shareholder having 99.99% of the equity share
capital, has given consent affidavits to the Scheme constituting 99.99% in value and 99.99% in number. The consent affidavits of each of the
members have been placed on record.
It is further represented that the resulting company has no secured creditors and no unsecured creditors. As the company has no unsecured
creditors, the requirement of convening meetings of unsecured creditors does not arise. Also, as the company has no secured creditor, the requirement
of convening meetings of secured creditors too, does not arise. In relation to the shareholders and creditors, the resulting company seeks dispensation
from convening and holding of their respective meetings on the ground that all the shareholders of the resulting company have given consent affidavits
in favour of the Scheme and company has no secure and unsecured creditors.
M/s Stabhya Projects Private Limited (Resulting Company 2), bearing CIN U70109DL2019PTC349765, was incorporated on 08.05.2019, under
provisions of the Companies Act, 2013 and presently having its registered office at 824, Vikas Deep Building, District Centre, Laxmi Nagar, New
Delhi-10092. The present Authorized Share Capital of the Resulting Company 2 is Rs.1,00,000/- divided into 10,000 Equity Shares of Rs. 10/-each.
The present Issued, Subscribed and paid-up Share Capital of the Company is Rs. 1,00,000/- divided into 10,000 Equity Shares of Rs. 10/- each.
The main objects of the Resulting Company 2 as set out in the Memorandum of Association are:
• To buy, sell or deal in plots or real estate, residential, commercial, agricultural or of any kind and to construct build houses, flats, bunglows.
It is submitted that the Resulting Company 2 has two Equity Shareholders and one of the equity shareholder having 99.99% of the equity share
capital, has given consent affidavits to the Scheme constituting 99.99% in value and 99.99% in number. The consent affidavits of said member has
been placed on record.
It is further represented that the resulting company 2 has no secured creditors and no unsecured creditors. As the company has no unsecured
creditors, the requirement of convening meetings of unsecured creditors does not arise. Also, as the company has no secured creditor, the requirement
of convening meetings of secured creditors too, does not arise. In relation to the shareholders and creditors, the resulting company seeks dispensation
from convening and holding of their respective meetings on the ground that all the shareholders of the resulting company have given consent affidavits
in favour of the Scheme and company has no secure and unsecured creditors.
We have perused the joint application and the connected documents / papers filed with the application including the Scheme of Arrangement as
contemplated between the Applicant companies.
It is seen that the board of directors of all the three applicant companies vide separate meetings, held on 14.05.2019 have unanimously approved
the proposed Scheme of Arrangement. Copies of such board resolutions passed by the board of directors have been placed on record by the
companies.
All the applicants have filed their respective Memorandum of Associations and Articles of Associations. The financial statement of the demerged
company of the financial year ending 31.03.2019 has been placed on record. The applicants have stated that both resulting company number 1 & 2 are
new incorporated companies, hence, the latest financials of the companies are not available.
The appointed date as provided in the Scheme shall be April 1st, 2019. All 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 all 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.
Taking into consideration the application filed jointly by all the Applicant Companies the following directions are issued: -
A) In relation to the Demerged Company: -
(i) The meeting of Equity Shareholders is dispensed with as there are only seven equity shareholders in the company and all of their consent
affidavits in favour of the Scheme have been placed on record.
(ii) The requirement of the meeting of secured creditors is obviated 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 47 unsecured creditors out of which 18 unsecured creditors
having 91.38% of the total value of unsecured debt as required under Section 230 (9) of the Companies Act, 2013,has given its consent
affidavit in favour of the Scheme.
B) In relation to the Resulting Company 1:-
(i) The meeting of equity shareholders is also dispensed with as there are 2 equity shareholders, out of which 1 equity shareholder having
99.99% of the total equity share, has given its consent affidavit in favour of the Scheme and his consent affidavit in favour of the Scheme
has been placed on record.
(ii) The requirement of the meeting of secured creditors is obviated 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 obviated as there are no unsecured creditors in the company and therefore, the requirement of
convening meeting of secured creditors does not arise.
C) In relation to the Resulting Company 2:-
(i) The meeting of equity shareholders is also dispensed with as there are 2 equity shareholders, out of which 1 equity shareholder having
99.99% of the total equity share, has given its consent affidavit in favour of the Scheme and his consent affidavit in favour of the Scheme
has been placed on record.
(ii) The meeting of secured creditors is obviated 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 obviated as there are no unsecured creditors in the company and therefore, the requirement of
convening meeting of secured creditors does not arise.
In view of the above the present joint application stands allowed by dispensing with the meetings of shareholders and creditors of all the applicant
companies.
Let copy of the order be served to the parties.