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2016 Supreme(Del) 3695
IN THE HIGH COURT OF DELHI AT NEW DELHI
SIDDHARTH MRIDUL, J.
IN THE MATTER OF: NANDOS SERVICES INDIA PRIVATE LIMITED – Applicant
CO. APPL. (M) No. 139 of 2016
Decided On : 03-10-2016
For the Applicants : Mr. Dhritiman Bhattacharyya, Mr. Piyush Sharma & Ms. Deeti Ojha.
The consents obtained from Equity Shareholders and Unsecured Creditors can lead to the dispensation of the requirement for convening meetings, as per the Companies Act and related rules.
Headnote:
Companies Act - Scheme of Arrangement and Amalgamation - Sections 391-394 of the Companies Act, 1956 - Rules 67 to 87 of the Companies (Court) Rules, 1959
Fact of the Case:
The application seeks condonation of delay in re-filing the accompanying Company Application under Rule 9 of the Companies (Court) Rules, 1959. It pertains to a first motion application under sections 391-394 of the Companies Act, 1956, for a Composite Scheme of Arrangement and Amalgamation between Transferor Companies and a Transferee Company.
Finding of the Court:
The court allowed the application for condonation of delay in re-filing the accompanying Company Application. It also dispensed with the requirement of convening meetings of Shareholders and Unsecured Creditors of the Transferor Companies based on the consents obtained.
Issues: Condonation of delay in re-filing the Company Application, dispensing with the requirement of convening meetings of Shareholders and Unsecured Creditors.
Ratio Decidendi: The court's decision was influenced by the consents obtained from the Equity Shareholders and Unsecured Creditors of the Transferor Companies, leading to the dispensation of the meetings' requirement.
Final Decision: The application for condonation of delay and dispensation of meetings' requirement was allowed and disposed of accordingly.
CO. APPL. No. 3814/2016 (Delay in re-filing)
The present application under Rule 9 of the Companies (Court) Rules, 1959, seeks condonation of delay in re-filing the accompanying Company Application.
For the reasons stated in the application the same is allowed. The delay in re-filing the accompanying Company Application is condoned.
The application is disposed of accordingly.
CO. APPL. (M) No. 139/2016
1. The present first motion application under sections 391-394 of the Companies Act, 1956, (for short ‘Act’) read with Rules 67 to 87 of the Companies (Court) Rules, 1959, has been filed on behalf of Nandos Services India Private Limited (Transferor Company No. 1) and Janpath Restaurants Private Limited (Transferor Company No. 2), in connection with the Composite Scheme of Arrangement and Amalgamation (for short ‘Scheme’) between Transferor Companies No. 1 to 2 with Nando's Karnataka Restaurants Private Limited (Non-applicant/Transferee Company).
2. The Transferor companies No. 1 and 2 are hereinafter jointly referred to as Transferor Companies.
3. The Registered Offices of the Transferor Companies are situated within the National Capital Territory of Delhi, thus within the jurisdiction of this Court. The Registered Office of the Transferee Company is situated at Bangalore, Karnataka, being outside the jurisdiction of this Court.
4. It has been submitted on behalf of the Transferor Companies that an application for first motion has been filed on behalf of the Transferee Company before the Karnataka High Court, in accordance with law.
5. A copy of the proposed Scheme has been filed along with the present application and the same is on record. The rationale for the Scheme is that synergies arising out of consolidation of respective businesses would lead to reduction of operating and administrative costs, improvement in profitability, efficient and effective management of business, pooling of financial resources for centralised management of funds to supplement future growth opportunities.
6. The details qua the authorized, issued, subscribed and paid-up capital of the Transferor companies has been set out in paragraph 4 of the Scheme.
7. Transferor Company No. 1 was incorporated on 28.01.2016 under the provisions of the Act. As on 31.03.2015, the authorised share capital of Transferor Company No. 1 is Rs.35,00,000/-, divided into 3,50,000 equity shares of Rs.10/- each. As on 31.03.2015, the issued, subscribed and paid up share capital of Transferor Company No. 1 is Rs.30,75,000/-, divided into 3,07,500 equity shares of Rs.10/- each.
8. Transferor Company No. 2 was incorporated on 14.03.2012 under the provisions of the Act. As on 31.03.2015, the authorised share capital of Transferor Company No. 2 is Rs.37,00,00,000/-, divided into 3,70,00,000 equity shares of Rs.10/- each. As on 31.03.2015, the issued, subscribed and paid up capital of Transferor Company No. 2 is Rs.19,96,04,980/-, divided into 1,99,60,498 equity shares of Rs.10/- each.
9. Copies of the Memorandum of Association and Articles of Association are on record. The latest audited Annual Accounts for the year 31st March, 2015 of the Transferor Companies have been enclosed with the application. Copies of the latest un-audited provisional financial statements as on 28th June, 2016 of the Transferor Companies have also been enclosed with the application. The same are on record.
10. It has been submitted on behalf of the Transferor Companies that no proceedings under Sections 235 to 251 of the Act are pending against the Transferor Companies as on the date of institution of the present application.
11. It has been averred that the Scheme has been approved by the respective Board of Directors (BOD) of the Transferor companies. Copies of the BODs Resolutions, dated 28.06.2016, of the Transferor companies whereby the Scheme has been approved, are filed with the application and the same are
