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COMP/252/2009 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
PETITION No. 252 of 2009
In
COMPANY
APPLICATION No. 228 of 2009
With
COMPANY
PETITION No. 253 of 2009
In
COMPANY
APPLICATION No. 227 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
ANAR
SOFTCOM PRIVATE LIMITED - Petitioner(s)
Versus
.
- Respondent(s)
=========================================================
Appearance
:
MRS
SANGEETA N PAHWA for
Petitioner(s) : 1,
MR M.IQBAL A. SHAIKH for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 17/06/2010
COMMON
ORAL JUDGMENT
Company
Petition No.252 of 2009 has been preferred by the petitioner
– ANAR SOFTCOM PRIVATE LIMITED (Demerged Company) and
Company Petition No.253 of 2009 has been preferred by the petitioner
– ENRICH INDUSTRIES LIMITED (Resulting Company), to
sanction the proposed Scheme of Arrangement in the nature of
demerger of Shoftcom Division of Anar Softcom Private Limited into
Enrich Industries Limited.
Mrs.Sangeeta
Pahwa, learned advocate has
appeared on behalf of the respective petitioners and Mr.M.Iqbal A.
Shaikh, learned Central Government Counsel has appeared on behalf of
the Central Government i.e. Regional Director, Western Region,
Ministry of Corporate Affairs, Mumbai.
Mrs.Pahwa,
learned advocate appearing on behalf of the respective petitioners
has submitted that pursuant to the order passed by this Court
dtd.15/5/2009 in Company Application No.228 of 2009, the meeting of
the shareholders of the demerged company was ordered to be dispensed
with in view of the written consent given by the shareholders to the
proposed scheme of arrangement. A meeting of the secured and
unsecured creditors of the demerged company was ordered to be
convened on 25/6/2009. It has been submitted that necessary approval
from the Stock Exchange could not be obtained and therefore,
meeting scheduled to be convened on 25/6/2009 was adjourned sine
die. It has been reported that thereafter Misc.Civil Application
No.116 of 2009 in Company Application No.228 of 2009 was submitted
before this Court for an appropriate direction to fix fresh date to
convene the meeting of secured and unsecured creditors of the
demerged company. That by order dtd.10/11/2009, the said application
came to be allowed/disposed of and it was directed to convene the
meeting of the secured and unsecured creditors on 10/12/2009. It has
been reported that the meeting of the secured and unsecured
creditors of the demerged company was convened on 10/12/2009 as
ordered by this Court and all the unsecured creditors of the
demerged company have given their consent to the proposed scheme of
arrangement in nature of demerger of Shoftcom Division of Anar
Softcom Private Limited into Enrich Industries Limited. It has been
reported that though intimated, nobody remained present on behalf of
the secured creditors in the said meeting. However, subsequently
both the secured creditors have given their consent in writing to
the proposed scheme of arrangement. An affidavit by the Chairman in
relation to the meeting of the secured creditors as well as
unsecured creditors has been placed on record.
It
has been pointed out that vide order dtd.15/5/2009 passed by this
Court in Company Application No.227 of 2009, meeting of the
shareholders and unsecured creditors of the resulting company was
ordered to be convened on 25/6/2009 and it was reported that there
are no secured creditors of the resulting company. It has been
pointed out that as Certificate from the Stock Exchange was not
received, meeting of the shareholders and unsecured creditors of the
resulting company was adjourned. It has been reported that
thereafter Misc.Civil Application No.115 of 2009 was filed by the
resulting Company for an appropriate direction of fresh date of
convening meeting and the learned Single Judge granted the said
application and directed to convene the meeting of the shareholders
and unsecured creditors of the resulting company on 10/12/2009. It
has been reported that accordingly meeting of the shareholders and
unsecured creditors of the resulting company was convened on
10/12/2009 as ordered by this Court and it has been reported that
all the shareholders and unsecured creditors of the resulting
company have given their consent to the proposed scheme of
arrangement in nature of demerger of Softcom Division of Anar
Softcom Private Limited into Enrich Industries Limited. An affidavit
filed by the Chairman with respect to the meeting of the
shareholders and unsecured creditors dtd.22/12/2009 has been placed
on record at page Nos.129 to 139 confirming the above.
Both
these petitions came to be admitted by this Court vide order
dtd.29/12/2009. Notice of hearing of the petitions were directed to
be published in Indian Express (English Daily) and Lok-Satta
Jan-Satta (Gujarati Daily), both Ahmedabad Editions and
publication of notice in the Government Gazette was ordered to be
dispensed with. It has been pointed out that accordingly the notice
of hearing of the petitions have been published in the aforesaid two
news papers as ordered by this Court and Affidavit confirming the
same have also been placed on record. Despite the above, nobody has
submitted any objection to the proposed scheme of arrangement.
Notice
was ordered to be issued upon the Central Government to be served
through the Regional Director, Department of Corporate Affairs and
Mr.M.Iqbal A. Shaikh, learned Central Government Counsel has
appeared on behalf of the Regional Director. An affidavit has been
filed by Mr.Rakesh Chandra, Regional Director, Western Region,
Ministry of Corporate Affairs dtd.31/3/2010 and it has been
submitted that the resulting company has proposed in the Scheme at
Para No.10.1.2 to issue of equity shares to the shareholders of the
demerged company in consideration of transfer of demerged unit. It
has been submitted that the resulting company does not have
sufficient authorized capital to issue the above said shares to the
shareholders of the demerged company and hence the resulting company
has to increase its authorized capital suitably. It is submitted
that in this regard the resulting company has given an undertaking
vide his letter dtd.18/3/2010 for increase its authorized capital.
It has been further submitted in the said Reply that save and except
as stated above, the Scheme is not prejudicial to the interest of
shareholders and public. Therefore, it is requested to pass
appropriate order.
Mrs.Pahwa,
learned advocate appearing on
behalf of the respective petitioners has reiterated what has been
stated in the Undertaking dtd.18/3/2010 and it has been stated that
the authorized share capital of resulting company i.e. Enrich
Industries Limited will be increased by Rs.5 Crores (Rupees Five
Crores only) comprising of 50 Lacs share of Rs.10 each for effective
allotment of new shares to the shareholders of the Anar Softcom
Private Limited. Therefore, it is submitted that subject to above,
the proposed scheme of arrangement in the nature of demerger of the
Softcom Division of Anar Softcom Private Limited into Enrich
Industries Limited, be sanctioned.
Heard
Mrs.Sangeeta Pahwa, learned
advocate appearing on behalf of the respective petitioners and
Mr.M.Iqbal A. Shaikh, learned Central Government Counsel appearing
on behalf of the Central Government i.e. Regional Director,
Western Region, Ministry of Corporate Affairs, Mumbai.
It
has been submitted that the demerger of Shoftcom Division of Anar
Softcom Private Limited into Enrich Industries Limited will be for
better utilization of the resources, assets and the properties of
the Companies resulting into higher running on capital. As stated
above, all the shareholders and unsecured creditors of the demerged
company and all the shareholders, unsecured and secured creditors of
the resulting company have given their consent for approval of the
proposed scheme of arrangement subject to increasing its authorized
capital by the resulting company and as mentioned in para 6 of the
Affidavit of the Regional Director and Undertaking of the resulting
company dtd.18/3/2010. There
does not appear to be any impediment to grant the proposed scheme.
Advertisement of the public notice of this petition was published in
two daily news papers having vide circulation, however, nobody has
objected to the proposed scheme of demerger. The proposed scheme
of demerger does not appear to be contrary to law and/or the public
interest.
In
view of the above and for the reasons stated above, both the
petitions i.e. Company Petition No.252 of 2009 and Company Petition
No.253 of 2009 are hereby allowed and the prayer in terms of para
16(A) of Company Petition No.252 of 2009 and prayer in terms of para
17(A) of Company Petition No.253 of 2009, are hereby granted and the
proposed scheme in the nature of demerger of Shoftcom Division of
Anar Softcom Private Limited into Enrich Industries Limited is
hereby sanctioned on increasing authorized share capital of the
resulting company and on condition that the authorized share capital
of the Enrich Industries Limited (resulting company) shall be
increased by Rs.5 Crores (Rupees Five Crores only) comprising of 50
Lacs share of Rs.10 each for effective allotment of new shares to
the shareholders of the Anar Softcom Private Limited.
Both
these petitions stand disposed of accordingly. Cost to be paid by
the respective petitioners to Mr.M.Iqbal A. Shaikh, learned Central
Government Counsel is quantified at Rs.5000=00 (Rupees Five
Thousand only) per petition.
[M.R.
SHAH, J.]
rafik
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