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COMA/60320/2008 6/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
APPLICATION No. 603 of 2008
=========================================================
WELSPUN
INDIA LIMITED - Applicant(s)
Versus
.
- Respondent(s)
=========================================================
Appearance
:
MRS
SWATI SOPARKAR for
Applicant(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 28/11/2008
ORAL
ORDER
Leave to amend.
Upon the application of
the abovenamed company by summons dated 26.11.2008, filed under
Sections 391 to 394 read with Sections 78 and 100 to 104 of the
Companies Act, 1956, upon hearing Smt. Swati Soparkar, advocate for
the applicant company and upon reading of the affidavit dated
24.11.2008, filed in support of the Judges’ Summons for directions
and other relevant annexures attached in support of the contents of
the affidavit filed by the deponent, (Exhibit ‘C’ being a copy of
the proposed scheme of arrangement).
IT
IS ORDERED :
That separate meetings of
the secured creditors, unsecured creditors and equity shareholders
of the applicant company shall be convened and held at the
registered office of the company at Welspun City, Village Versamedi,
Taluka Anjar, Dist. Kutch, Gujarat 370110 in the state of
Gujarat on Tuesday, the 13.1.2008 respectively at 2:00 p.m. 3:00
p.m. and 4:00 p.m. for the purpose of considering and if thought
fit, approving with or without modifications, the proposed scheme of
arrangement in the nature of demerger and transfer of marketing
division of Welspun India Ltd., to Welspun Global Brands Ltd., and
its Investment & Treasury Division to Welspun Investments Ltd.,
and Restructure of Capital of all these companies.
That at least 21 clear
days before the meetings to be held as aforesaid. Notice convening
the said meetings, indicating the day, the date, the place and the
time as aforesaid, together with a copy of the scheme of
arrangement, copy of the explanatory statement required to be sent
under Section 393 of the Companies Act, 1956 and the prescribed form
of proxy shall be sent by a pre-paid letter posted Under Certificate
of Posting, addressed to each of the equity shareholders, secured
creditors and unsecured creditors of the applicant Company, at their
last known address.
That at least 21 clear
days before the meetings to be held as aforesaid, Notice convening
the said meetings indicating the day, the date, the place and time
as aforesaid be published, stating that copies of the scheme of
arrangement, the explanatory statement required to be furnished
pursuant to Section 393 of the Companies Act, 1956 and form of proxy
can be obtained free of charge at the Registered Office of the
applicant company and/or at its advocate’s office i.e. 204,
Aakanksha, opposite Vadilal House, Mithakhali, Navrangpura,
Ahmedabad 380 009 once each in the India Express, English daily and
Sandesh, Gujarati daily (both Saurashtra and Kutch edition).
Shri Murari Lal Mittal,
the Executive Director (Finance) of the applicant Company, and
failing him Shri Ram Gopal Sharma, the Director of the applicant
company, shall be the Chairman of the aforesaid meetings to be held
on 13.1.2009 and in respect of any adjournment or adjournments
thereof.
That the Chairman
appointed for the aforesaid meetings do issue advertisements and
send out notices of the said meetings referred to above. It is
further directed, that the Chairman of the meetings shall have all
powers under the Article of Association of the applicant company and
under the Companies (Court) Rules, 1959 in relation to conduct of
meetings including an amendment to the scheme or resolution, if any,
proposed at any of the meetings by any person(s) and to ascertain
the decision of the meeting on a poll.
That the quorum for all
the meetings shall be 5 (five) members of the respective category,
present in person.
That voting by proxy is
permitted provided that the proxy in the prescribed form and duly
signed by the person entitled to attend and vote at the aforesaid
meeting, or by his authorised representative, is filed with the
applicant company at its registered office at Kutch, not later than
48 hours before the said meeting.
That the value of the
vote of each equity shareholder of the company shall be as per the
entries in the Registers of the company and that of the creditor
shall be as per the books of accounts of the company and where the
entries in the records or registers are disputed, the Chairman of
the meetings shall determine the value or number for the purposes of
the meeting and his decision in that behalf would be final.
That the Chairman do
report to this Court, the result of the said meeting within 14 days
of the conclusion of the meeting and the said report shall be
verified by his affidavit.
It has been submitted
that the only preference shareholder of the company has given the
written consent approving the proposed scheme of arrangement. The
said preference shareholder has also given up the right to attend
the meeting for the purpose of considering such resolution. He has
also specifically consented that no shares shall be issued to him by
the resulting companies on the proposed demerger. A certificate of
a Chartered Accountant confirming the said status of preference
shareholder has been placed on record. Under the circumstances, the
meeting of the preference shareholders of the applicant Company as
required to be held under provisions of Section 391(2) of the
Companies Act, 1956, is not necessary to be held and is hereby
dispensed with.
It has been further
submitted that the consequential reduction of share capital in form
of utilization of share premium account of the applicant company is
proposed as an integral part of the proposed scheme of arrangement.
Further, the proposed reduction does not involve either diminution
of liability in respect of unpaid share capital or payment to any
shareholder of any paid-up share capital and the order of the Court
sanctioning the Scheme shall be deemed to be an order under Section
102 of the Companies Act confirming the reduction. The special
resolution that may be passed at the meeting approving the scheme by
the shareholders of the applicant company, shall be treated as the
special resolution as required under Section 100 of the Companies
Act, 1956. In view of this, the procedure prescribed under Section
100 and 101(2) of the Companies Act, 1956 are hereby dispensed with.
The application is hereby
disposed off.
(K.
A. PUJ, J.)
kks
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