VA TECH HYDRO INDIA (P.) LTD. Vs. STATE

JUDGEMENT

(1.) THIS application has been filed under Section 391, read with Sections 392, 393 and 394 of the Companies Act (hereinafter referred to as the 'Act') read with Rules 9 and 79 of the Companies (Court) Rules, 1959 (hereinafter referred to as the 'Rules'). Prayer made in this application is to grant sanction to the proposed Scheme of Amalgamation and Arrangement from the effective date and with effect from the appointed day as notified and defined in the Scheme, as a going concern in accordance to the terms and conditions set forth in the Scheme. The Scheme in question, approval of which is sought for is filed as Annexure P/1 and is available at Pages 39 to 74, of the petition.

(2.) FACTS in brief, necessary for disposal of this petition, are that M/s. VA Tech Hydro India Private Limited is first petitioner and the transferee -company was originally incorporated as CG Elin Power Systems Private Limited in the State of Madhya Pradesh with effect from 28 -11 -1996. Subsequently, name of the petitioner -company was changed to the present name, i.e...M/s. VA Tech Hydro India Private Limited with effect from 26 -6 -2007 and after change of name a fresh certificate of incorporation was issued by the Registrar of Companies, Madhya Pradesh and Chhattisgarh. Shortly after its incorporation, it is stated that the first petitioner/transferee -company had commenced its business and at present it is carrying out the following business activities: 'manufacture, design, development, engineering, marketing, import and export, purchase, sale, lease, repair, consultancy, contracting, execution and project engineering, distribution, agency or otherwise deal in all kinds of products, plants, systems and services related to the generation, distribution and utilization of power and energy'. It is pointed out that under clause 44 of the Memorandum of Association, a provision is made for the petitioner -company to amalgamate with any other company having objects altogether or in part similar to that of the petitioner -company or otherwise. Copies of Certificates of Incorporation of the first petitioner -company, issued by the Registrar of Companies, Madhya Pradesh and the fresh certificate indicating change of name are filed as Annexure P/3, available at pages 78 and 79 of the petition, and a copy of the Memorandum of Article of Association in force is Annexure P/4, at pages 80 to 101 of the petition.

(3.) IT is further stated that as on 31 -10 -2008, the first petitioner/transferee -company has the following creditors namely: (i) Only one Secured Creditor representing Secured Credit of Rs. 32,29,725 (Rupees thirty two lakhs twenty nine thousand seven hundred and twenty five only). (ii) First Petitioner/Transferee -Company has sanctioned working capital limits from four banks namely: State Bank of India - Overseas Branch; ICICI Bank; IDBI Bank; and, Calyon Bank of Rs. 233,80,00,000 (Rupees two hundred thirty three crores and eighty lakhs only). (iii) Has 181 (one hundred eighty one) Unsecured Creditors representing Unsecured Credit of Rs. 26,75,56,168 (Rupees twenty six crores seventy five lakhs fifty six thousand one hundred sixty eight only). It is submitted that all the Creditors, namely, Secured, Unsecured and four banks [set out in Clause (it) above] have provided their consent to the Scheme being sanctioned by this Hon'ble Court without any modification/amendment. Copies of the List of Secured Creditors as on 31 -10 -2008, duly certified by M/s. Tarun Jaggi & Associates, Chartered Accountants along with individual letters of consent are annexed with the Company Petition as Annexure P/11 and are available at page Nos. 281 to 289 of the petition; and, a List of Unsecured Creditors as on 31 -10 -2008 again duly certified by M/s. Tarun Jaggi & Associates, Chartered Accountants is annexed with the Company Petition as Annexure P/12 and are available at page Nos. 290 to 295 of the petition. Further copies of the List of Banks together with amount of guarantees issued as on 31 -10 -2008 again certified by M/s. Tarun Jaggi & Associates, Chartered Accountants is annexed with the Company Petition as Annexure P/13 and are available at page Nos. 296 to 300 of the petition.