Efacec Swithgear India Pvt. Ltd. v. Efacec India Pvt. Ltd.

1. This is a first motion joint application under sections 391 to 394 of the Companies Act, 1956,(“ACT”) in connection with the Scheme of Amalgamation (hereinafter referred to as “Scheme”) of Efacec Swithgear India Pvt. Ltd. (Transferor Company) with Efacec India Pvt. Ltd. (Transferee Company) (hereinafter collectively referred as Applicant Companies).A copy of the proposed Scheme of amalgamation is filed along with the Application. 2014:DHC:2692 CO.Appl.(M) 73/2014 2

2. The registered offices of both the Applicant Companies are situated within the National Capital Territory of Delhi and are within the jurisdiction of this Court.

3. The details with regard to the date of incorporation of Applicant 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 latest audited Annual Accounts for the year ending 31.03.2013 of the Applicant Companies have also been enclosed with the Application.

5. Learned Counsel for the Applicant Companies submitted that no proceedings under sections 235 to 251 of the Companies Act, 1956 are 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 (“BOD”) of all the Applicant Companies. Copies of the Board Resolutions 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: CO.Appl.(M) 73/2014 3

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

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

10. In view of the written consent/NOC given by one Secured Creditor in the Transferor Company holding 99.24 % of the total debt in value the requirement of convening the meeting of Secured Creditors of the Transferor Company is dispensed with. Company No. of Equity Shareholders Consent given No. of secured Creditors Consents given No. of unsecure d creditors Contents given Transferor Company 2 2 2 1 (99.24%) in value 110 55 (95.90%) in value Transferee Company 2 2 1 1 25 14 (97.82%) in value CO.Appl.(M) 73/2014 4

11. In view of the written consents/NOC given by Secured Creditor of the Transferee Company the requirement of convening meetings of Secured Creditor of the Transferee Company is dispensed with.

12. Learned counsel for the applicant has contended that M/s. ABB AG has issued their „no objections‟ letters dated 10.03.2014, however, the Resolution of the Board of Directors has not been supplied to the applicant despite being requested so. He contends that though the consent has been obtained, a specific notice shall be issued to M/s. ABB AG inviting their objections to the scheme at the time of the second motion.

13. Learned counsel for the applicant has contended that M/s. TMT Pvt. Ltd. has issued their „no objections‟ letters dated 10.03.2014, however, the Resolution of the Board of Directors has not been supplied to the applicant despite being requested so. He contends that though the consent has been obtained, a specific notice shall be issued to M/s. TMT (P) LTD. inviting their objections to the scheme at the time of the second motion.

14. Learned counsel for the applicant contends that M/s. TATA Capital Ltd., a secured creditor has not given their consent and comprises only 0.76% of value and pertains to a car loan and probably by the second motion the second loan would have been discharged. He CO.Appl.(M) 73/2014 5 further contends that in case the loan is not discharged, the applicant shall issue notice to M/s. TATA Capital Ltd. at the time of the second motion.

15. In view of the written consent/ NOC given by 55 out of 110 Unsecured Creditors in the Transferor Company holding 95.90% of the total debt in value, the requirement of convening the meeting of Unsecured Creditors of the Transferor Company is dispensed with.