System Builders and Developers Private Limited v. Gemstar Builders & Developers Private Limited

1. This first motion joint application has been filed under Sections 391- 394 of the Companies Act, 1956 (for short Act) in connection with the Scheme of Amalgamation (for short Scheme) of SYSTEM BUILDERS AND DEVELOPERS PRIVATE LIMITED (hereinafter referred to as the Transferor Company) with GEMSTAR BUILDERS & DEVELOPERS PRIVATE LIMITED (hereinafter referred to as the Transferee Company) {hereinafter collectively referred to as “Applicant Companies”}. A copy of the proposed Scheme is filed along with the present application.

2. The Registered Offices of the Transferor and Transferee Companies are situated within the National Capital Territory of Delhi and are within the jurisdiction of this Court. 2014:DHC:2725

3. The details with regard to the date of incorporation of the Transferor and Transferee Companies, their authorized, issued, subscribed and paid up capital have been set out in the Application.

4. Copies of the Memorandum and Articles of Association as well as the Audited Balance Sheets, as on 31st March, 2013 of the Transferor and Transferee Companies have also been enclosed with the application.

5. The Learned Counsel for the Applicants submits that no proceeding under Sections 235 to 251 of the Companies Act, 1956 is pending against any of the Applicant Companies as on the date of the present Application.

6. The proposed Scheme has been approved by the Board of Directors of the Applicant Companies. Copies of the Board Resolutions passed in the Board Meetings of the Applicant Companies have been filed along with the Application.

7. The status of the Shareholders, Secured and Un-secured Creditors of the Transferor and Transferee Companies and consents obtained from them for the proposed Scheme is clearly apparent from the chart given in the application which is as follows:-

8. A prayer has been made for dispensation of the requirement of convening meetings of Shareholders, secured creditors and unsecured creditors of the Transferor and Transferee Companies.

9. In view of the written consents/NOC given by shareholders of the Transferor Company and Transferee Company, the requirement of convening meetings of Shareholders of the Transferor Companies and Transferee Company are dispensed with.

10. Since there are no Secured Creditors in Transferor Company and the Transferee Company, the question of convening the meeting of Secured Creditors of Transferor Company and the Transferee Company does not arise.

11. The Learned counsel for the Applicants submits that only HDFC Bank Ltd. is the secured creditor of the Transferor Company in respect of loan of three vehicles. He contends that „no objection Company No. of Shareholders Consent given No. of secured Creditors Consents given No. of unsecure d creditors Consents given Transferor Company

4 All NIL N.A Nil N.A Transferee Company 5 All NIL N.A. 5 All certificate‟ to the Scheme has been obtained and consent from the branches of HDFC Bank Ltd. has been placed on record. He submits that the bank has not furnished the Board Resolution. However, he undertakes on behalf of the petitioner company that at the time of the Second Motion Petition, specific notice would be issued to the concerned bank inviting their observations, if any.

12. In view of the written consents/NOC given by five unsecured creditors of the Transferee company, the requirement of convening meetings of unsecured creditors of the Transferee Company are dispensed with directing that a specific notice be issued to HDFC Bank at the time of the Second Motion.

13. Since there are no Un-secured Creditors in the Transferor Company, the question of convening the meeting of Un-secured Creditors in the Transferor Company does not arise.

14. The application stands allowed in the aforesaid terms. Order Dasti SANJEEV SACHDEVA, J MAY 21, 2014