ORAL ORDER
1. The present Judges' Summons have been taken out by the applicant Jekson Vision Private Limited (Transferor Company) for the following orders:-
[A] That having procured the consent of all the Equity Shareholders of the applicant company to the proposed Scheme of Amalgamation, amalgamating Jekson Vision Private Limited with Viztek Technologies Private Limited, the meeting as required to be held under the provisions of Sec.391(2) of the Companies Act, 1956 is not required to be held insofar as the Equity Shareholders of the applicant company are concerned;
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[B] And that, considering the submissions made vide para 9 of the affidavit, in view of the fact that no compromise is proposed to the Unsecured Creditors of the Applicant Company and that the liabilities of the Applicant Company are being undertaken by the Transferee Company which has much higher net worth i.e. excess of its assets over liabilities, the meetings as required to be held under the provisions of Sec. 391(2) of the Companies Act, 1956 is not required to be held insofar as the Unsecured Creditors of the Applicant Company are concerned;
[C] That this Hon'ble Court may be pleased to grant such other and further reliefs as may be deemed fit and proper by this Hon'ble Court, in the interest of justice;
2. Mr.Navin Pahwa, learned advocate appearing on behalf of the applicant, has drawn the attention of the Court to Pages 84 and 86 (Annexure-D) and has submitted that both the Equity Shareholders of the applicant-Transferor Company have given their consent,
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in writing, to the proposed Scheme of Amalgamation of applicant with Viztek Technologies Private Limited. It is, therefore, requested that an appropriate order be passed, dispensing with the meeting of the Equity Shareholders i.e. required to be held under Section 391(2) of the Companies Act, 1956.
3. The Learned Advocate has further requested that in so far as the Unsecured Creditors of the applicant company are concerned, in view of the averments and submissions made in Paragraph 9 of the Affidavit, it may be ordered that the meeting as required to be held under the provisions of Section 391(2) of the Companies Act, 1956, is not required to be held. Learned Counsel has invited the attention of this Court to an order dated 19.1.2016, passed by this Court in Company Application No.26 of 2016, in support of the contention that in a case where the facts were similar, this Court has ordered that no meeting of the Unsecured Creditors is required to be held. It is reported that there are no Secured Creditors of the applicant company.
4. Having heard Mr.Navin Pahwa, learned advocate for
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the applicant and considering the fact that both the Equity Shareholders of the Applicant Company have given their consent to the proposed Scheme of Amalgamation of the applicant company with Viztek Technologies Private Limited, the meeting of the Equity Shareholders of the Company, as required to be held under Section 391(2) of the Companies Act, 1956, to consider the proposed Scheme of Amalgamation, is hereby dispensed with.
5. Insofar as the meeting of the Unsecured Creditors is concerned, Learned Counsel has invited the attention of this Court to the averments made in paragraph 9 of the Affidavit which read as under:-
"Para-9 I submit that the applicant company does not have any secured creditor. I say that so far as the unsecured creditors of the applicant company are concerned, it is submitted that the Scheme does not envisage any proposal of compromise with any of the creditors of the Applicant company. The liabilities towards any of the creditors is neither being reduced nor being extinguished and under the proposed scheme all the liabilities of the applicant company are being transferred to the Transferee Company. It is worthwhile to point out that the Transferee
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Company is having very sound financial position. The dues of all the creditors of the applicant company shall be fully paid over as and when they fall due. The net worth (excess of its assets over the liabilities) of Viztek Technologies Private Limited, the Transferee Company as on today as well as post amalgamation is substantially positive. The Certificate of Chartered Accountant dated 9/12/2016 giving detailed working of the same on the basis of the audited balance sheet as at 31.3.2016 as well as provisional financial details as at 30.11.2016 are annexed herewith and marked as Annexure-F. I say that perusal of the same indicates that the excess of the assets of the Company over its liabilities, on the basis of the audited balance sheet as at 31.3.2016 works out to Rs. 1,37,82,85,905/-. Further, the excess of the assets of the Company over the liabilities of the Company, on the basis of the Provisional Financial Details as on 30.11.2016 works out to be Rs. 184,41,16,551/-. A perusal of the same makes it clear that the rights and interest of the creditors shall not be in any way affected by the proposed Scheme of Amalgamation. All the dues of all the creditors of the applicant company shall be fully paid on the due dates in the normal course of business. In view of the same, the applicant prays that this Hon'ble Court may be pleased to dispense with the meetings of creditors as prayed in prayer (B) of the Judges
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Summons. I also beg to annex another certificate of M/s. Surana Maloo & Co, Chartered Accountants dated 9th December 2016 confirming that there are no secured creditors of the applicant company, at
Annexure-G."
6. Having heard Learned Counsel for the applicant and having perused the averments made in the affidavit in support of the Judges Summons, as also the decision of this Court in the order dated 19.1.2016, passed in Company Application No.26 of 2016, it is held that the meeting of the Unsecured Creditors of the applicant company as required to be held under Section 391(2) of the Companies Act, 1956 to consider the proposed Scheme of Amalgamation of the applicant company with Viztek Technologies Private Limited, is hereby dispensed with.
7. In view of the above, the present Application stands disposed of.
(SMT. ABHILASHA KUMARI, J.)
Gaurav+
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