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2005 DIGILAW 1382 (RAJ)

Rajasthan Fasteners (P. ) Ltd. In re v. ABC

2005-05-09

S.K.KESHOTE

body2005
JUDGMENT 1. - This application is filed by Rajasthan Fasteners Private Limited having its Registered Office at B-27, Road No. 5, RHCO Industrial Area, Kukas, Amer, Jaipur, Rajasthan ('the applicant Transferee Company'), under Section 391(1) of the Companies Act, 1956 ('the Act, 1956'); therein the prayer has been made for an order for dispensing with the formalities of convening and holding of the meetings of the Equity Shareholders and of secured/unsecured creditors of the Applicant-Transferee Company or any other direction/order which is just and proper in the facts and circumstances of the case. 2. There are 22 equity shareholders of the Transferee Company, the details of which are given at page No. 115 of the application. The equity shareholders have given their consent/no objection regarding amalgamation of M/s. Aditya Minerals Private Limited (hereinafter shall be referred to as 'the Transferor Company') with the Transferee Company. These consent letters/no objections have been produced on the record of the application at page Nos. 120 to 141. 3. Having heard learned Counsel for the applicant Transferee Company and carefully gone through the consent letters/no objections given by these equity shareholders and the fact that majority shareholding of the Transferee Company is with Mr. P.M. Lodha, I consider it to be a fit case to dispense with the holding of the meetings of the equity shareholders. 4. There are two secured creditors of the Transferee Company as per the document Annexure-H at page No. 113 of the application i.e., the certificate of Narendra Sharma & Company, Chartered Accountants. The details given by the Chartered Accountants in the form of certificate at page No. 113 of the application has been taken from the books of account of the Transferee Company produced before them for verification. 5. The learned Counsel for the applicant Transferee Company does not dispute that the secured creditors have not given their consent/no objection of amalgamation of the Transferor Company with the applicant-Transferee Company. 6. Despite the fact that the secured creditors have not given their consent/ no objection of amalgamation of the Transferor Company with the applicant-Transferee Company, it is different matter that still the applicant has prayed for dispensing with holding of their meeting. This prayer made deserves no acceptance. 6. Despite the fact that the secured creditors have not given their consent/ no objection of amalgamation of the Transferor Company with the applicant-Transferee Company, it is different matter that still the applicant has prayed for dispensing with holding of their meeting. This prayer made deserves no acceptance. That apart it is not gainsay that even where secured creditors give their consent/no objection for amalgamation of the Transferor Company with the Transferee Company, still the court may, in the facts of the given case, decline to dispense with holding of the meeting. 7. There are four unsecured creditors of the applicant Transferee Company, the details of which are given at page No. 118 of the application, out of which one Mr. P.M. Lodha and another Binod Kumar Jain, are the Directors of the Company. Another unsecured creditor Smt. Neelmani Jain is the wife of Shri Binod Kumar Jain. All the four unsecured creditors have given their consent/no objection for amalgamation of the Transferor Company with the applicant-Transferee Company. Looking to the relation of the unsecured creditors and that some of them are Directors of the Transferee Company, I do not find any ground to decline the prayer made by the applicant for dispensing with holding of the meeting of unsecured creditors. Accordingly, the holding of the meeting of unsecured creditors of the applicant-Transferee Company is dispensed with. 8. There are, in all, 54 sundry creditors of the applicant-Transferee Company, the details of whom have been given at page Nos. 116 and 117 of the application; the total debt is of Rs. 59,64,877. Looking to the number of sundry creditors and their debts and the amount due against the Company I do not consider it to be a fit case to dispense with holding of their meeting. 9. The learned Counsel for the applicant-Transferee Company prayed that looking to the number of secured creditors i.e., two in all and the fact that one is Industrial Development Bank of India and another is Andhra Bank, the applicant may be granted permission to serve the notice upon them by registered post AD. I find sufficient merit and substance in this prayer made by the learned Counsel for the applicant-Transferee Company. Accordingly, I hereby accord permission to the applicant-Transferee Company to serve the notice of the meeting upon the secured creditors by the registered post AD. 10. I find sufficient merit and substance in this prayer made by the learned Counsel for the applicant-Transferee Company. Accordingly, I hereby accord permission to the applicant-Transferee Company to serve the notice of the meeting upon the secured creditors by the registered post AD. 10. Accordingly, it is ordered that separate meetings of secured and sundry creditors of the applicant-Transferee Company, for the purpose of considering and if thought fit, approving with or without modifications, the scheme of amalgamation of the transferor company with the applicant-Transferee Company, shall be convened and held, as per the following schedule, Name Date & Time Place Secured Creditors 18-6-2005 11.30 AM B-27, Road No. 5, RIICO Industrial Area, Kukas, Amer, Jaipur, Rajasthan Sundry Creditors 18-6-2005 12.30PM B-27, Road No. 5, RIICO Industrial Area, Kukas,Amer, Jaipur, Rajasthan That at least 21 clear days before the day fixed for the meeting of secured creditors the notice of convening the same and stating that copies of the said scheme of amalgamation and of the statements required to be furnished, shall be furnished, pursuance to Section 393 of the Companies Act, 1956 and forms of proxy can be obtained free of charge at the office of the applicant-Transferee Company or at the office of its Advocate, is permitted to be sent to the secured creditors by registered post AD. 11. As regards to the meeting of sundry creditors, the notice of convening the same and stating that copies of the said scheme of amalgamation and of the statements required to be furnished, shall be furnished, pursuance to Section 393 of the Companies Act, 1956 and forms of proxy can be obtained free of charge at the office of the applicant-Transferee Company or at the office of its Advocate, be advertised once in the local Dailies, namely, 'Rajasthan Patrika' and 'Dainik Bhaskar' (both Jaipur edition). 12. That at least 21 clear days before the meetings to be held as aforesaid, a notice convening the said meetings at the place and time aforesaid, together with the copy of the said scheme of amalgamation, a copy of the statement required to be sent under Section 393 of the Companies Act, 1956, and the prescribed form of proxy, shall be sent by prepaid post under certificate of posting addressed to each of the secured and sundry creditors, whose meetings are to be held at the respective registered or last known address. 13. 13. That the advocate for the applicant-Transferee Company do, within the time as he considers necessary and at least within three days, file in Court the forms of the advertisement, the notices and statement to accompany the notices, and the same shall be settled by the Registrar of this Court. 14. That Shri Manoj Pareek, Advocate, Rajasthan High Court Bench, Jaipur, shall be the Chairman of the meetings of the secured and sundry creditors to be held on 18-6-2005 as aforesaid. The applicant-Transferee Company shall deposit in the Court or pay within one week from today the total amount of Rs. 22,000 (Rupees twenty-two thousand) ( Rs. 11,000 for each meeting) towards remuneration and expenses to the Chairman for presiding the meetings. 15. That the Chairman appointed for the meetings through Company, do issue the advertisement and send out the notices of the meetings referred to above. 16. That the quorum for the said meetings shall be as per the provisions of the Companies Act, 1956. 17. That voting by proxy be permitted, provided that a proxy in the prescribed form duly signed by the person entitled to attend and vote at the meetings, is filed with the applicant-Transferee Company at its registered office at B-27, Road No. 5, RIICO Industrial Area, Kukas, Amer, Jaipur, Rajasthan, not later than forty-eight hours before the meetings scheduled to be held. 18. That the value of each creditors and sundry creditors shall be in accordance with the books of the applicant-Transferee Company and, where the entries in the books are disputed, the Chairman shall determine the value for the purposes of the meetings. 19. And, it is further ordered that the Chairman do separately report to this Court the result of the said meetings within seven days of the conclusion thereof, and the said reports shall be verified by his affidavit. 20. With these directions the application accordingly stands disposed of. *******