IN RE Vs. EXCEL DEVELOPERS PRIVATE LIMITED

JUDGEMENT

(1.) This is an Application filed jointly by the Applicant Nos. 1 and 2, namely, (1) S. JITENDRA TRADING & INVESTMENT PRIVATE LIMITED (SJTIPL) ('Transferee Company") and (2) Excel Developers Private Limited (EDPL) ('Transferor Company) and their respective shareholders in connection with a proposed Scheme of Amalgamation (Annexure "E" at page nos.135 to 160 of the Application) under Sections 230(1) and 232(1) of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016. The objective of this application is to ultimately obtain sanction of this Tribunal to a Scheme of Amalgamation (hereinafter referred to as "said Scheme" or "Scheme") proposed to be made between the Transferee Company, Transferor Company and their respective shareholders where and whereunder the entire undertaking of the Transferor Company with all assets and liabilities relating thereto as a going concern is proposed to be transferred to and vested in the Transferee Company. The Applicant Company no.1, i.e. the Transferee Company has an Authorised Share Capital of Rs.1,00,00,00/- divided into 10,00,000 equity shares of Rs.10/- each and the Issued, Subscribed and Paid-up Capital is Rs.1,00,00,000/- divided into 10,00,000 equity shares of Rs.10/- each having its registered office at 8, Camac Street, Room No.15, First floor, Kolkata- 700 017. The Applicant Company no.2, i.e. the Transferor Company has an Authorised Share Capital of Rs.10,00,000/- divided into 1,00,000 equity shares of Rs.10/- each and the Issued, Subscribed and Paid-up Capital is Rs.10,00,000/-divided into 1,00,000 equity shares of Rs.10/- each having its registered office at 8, Camac Street, Room No.15, First floor, Kolkata- 700 017. Both the Applicant Companies are unlisted. The Applicant Companies have submitted the photo copies of the last audited balance sheet along with the Auditor's Report and the Director's Report for the year ended on 31st March, 2017 has been annexed and marked as Annexure "B" and "D" to this Application. The Applicant Companies have submitted the photo copies of the Board Resolutions, which have been annexed at page nos. 23 to 26 of this Application. Copies of Memorandum and Articles of Association of both the Applicant Companies have been submitted and marked as Annexure "A" and "C" to this Application. Copy of the Valuation Report has been submitted and annexed as Annexure "F" to this Application. The Applicant Companies have also made submissions in the Application to the effect that there are no investigations or proceedings pending under sections 235 to 251 of the Companies Act, 1956 and/or applicable provisions of the Companies Act, 2013 against the Applicant Companies. Ld. Counsel for the Applicants made the averments in the Applications as well as the documents annexed to the Applications. All the Shareholders of the Applicant Nos. 1 and 2 have agreed in writing to the proposed Scheme of Amalgamation (Annexure H) . The Applicant Nos. 1 and 2 have no creditor and the Certificate from Auditor to the effect is provided along with the Application (Annexure G) . The Counsels appearing for the Applicants have sought directions under Section 230(1) and 232(1) of the Companies Act, 2013 for dispensing with the convening of separate meetings of Equity Shareholders and creditors of the Applicant Companies 1 and 2 in view of the aforesaid. In this context, the applicant companies have filed the list of 'Nil' Creditors and Auditor's Certificates for having no creditors of the applicant companies and marked as Annexure "G" to this application. List of equity shareholders of both the Applicant Companies has been filed by the Applicant Companies along with the affidavit confirming and approving the Scheme. It is observed that clause no. 19 of the Memorandum of Association of Applicant No.1, and clause no. 20 of the Applicant No. 2 empower them to amalgamate or enter into a merger with any company or companies. After having heard the submissions made by the Ld. Counsel appearing for the Applicants and having perused the documents annexed to the Applications the following orders are passed: i. Meetings of Equity Shareholders of the Applicant Companies 1 and 2 are dispensed with in view of all such Shareholders having already considered and given their written consent to the Scheme.

(2.) The Applicant Companies 1 and 2 do not have any creditor and hence the need to hold creditor's meeting does not arise.

(3.) Notice of the hearing of this petition in form NCLT 3A shall be advertised once in English daily 'Business Standard' and in Bengali 'Aajkal' daily newspaper, not less than 10 days before the aforesaid date fixed for hearing.