Anand Buildwell Consultants Private Limited & Anr. v. Polym Agencies Pvt. Ltd. & Ors.

1. This joint first motion Application under Sections 391 to 394 of the Companies Act, 1956 (“Act”) is in connection with a Scheme of Amalgamation (“Scheme”) of Anand Buildwell Consultants Pvt. Ltd. (hereinafter referred to as Applicant- 1/Transferor Company-1) and Polym Agencies Pvt. Ltd. (hereinafter referred to as Applicant-2/Transferor Company-2) With Spherical Collection Agency Pvt. Ltd. (hereinafter referred to as Applicant-3/Transferee Company-3) (hereinafter all Companies collectively referred to as “Applicant Companies”) and their respective Shareholders. The Scheme has been enclosed as Annexure A to the present Application.

2. The Registered Offices of all the Applicant Companies are situated at New Delhi, within the jurisdiction of this Hon’ble Court. 2014:DHC:2381

3. The details of the dates of incorporation of the Applicant Companies, their authorized, issued, subscribed and paid up capital have been set out in application.

4. The copies of the Memorandum and Articles of Association, latest Audited Accounts as on 31.03.2013 of the Applicant Companies have also been enclosed with the Application.

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

6. The proposed scheme has been approved by the Board of Directors of all the Applicant Companies. Certified true copies of the Board Resolutions have been filed along with the Application.

7. The status of the shareholders, secured and unsecured creditors of the Applicant Companies and the consents obtained from them for the proposed scheme is clearly apparent from the chart given in the application which is as follows:- Company No. of Share holder Consen t Given No of Secured Creditor Consen t Given No of Unsecure d Creditor Consent Given Applicant 1/Transfe ror Co.[1] 12 12 Nil NA 1 1 Applicant 2/ Transfero r co.[2] 47 47 Nil NA 36 35 (98.18% in value and 97.30% in number) Applicant 3/transfer or Co.[3] 2 2 Nil NA 2 2

8. A prayer has been made for dispensing with the requirement of convening meetings of equity shareholders and unsecured creditors of the Applicant Companies. It is stated that said equity shareholders and unsecured creditors have only given their no objection Certificate for the approval of the proposed scheme.

9. With regard to the unsecured creditor of applicant No.1, learned counsel for the petitioner submits that there is only one unsecured creditor and the consent letter of the unsecured creditor has been placed on record, however, there is no resolution of the Board of Directors supporting the letter of consent. Learned counsel for the petitioner submits that the consent letter alongwith resolution of the Board of Directors shall be filed alongwith second motion petition and prays for dispensation of the meeting of the sole unsecured creditors.

10. Learned counsel for the petitioner relies on the judgment dated 22.10.2013 of this Court in Company Application (M) No.142/2013, Manav Holding Private Limited.

11. In view of the above, the meeting is dispensed with subject to Transferor Company No.1 filing board resolution in support of the consent letter of the sole unsecured creditor at the time of the second motion petition.

12. In view of the Written consents, NOC by 98.18% in value and 97.30% in number of the unsecured creditors of the transferee company, the requirement of convening meetings of unsecured creditors of transferee company is dispensed with.

13. In view of the written consents/NOC given, the requirement of convening the meetings of equity shareholders and unsecured creditors of Applicant Companies are dispensed with, since the Applicant Companies do not have any secured creditors. Hence, the requirement of convening the meeting of secured creditors does not arise.

14. The application stands allowed in above terms.

SANJEEV SACHDEVA, J 05 MAY 2014 st