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COMA/451/2008 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
APPLICATION No. 451 of 2008
=========================================================
CARNATION
NUTRA ANALOGUE FOODS LIMITED - Applicant(s)
Versus
.
- Respondent(s)
=========================================================
Appearance
:
MR
MIHIR THAKORE, LD.SENIOR COUNSEL WITH MR SANDEEP SINGHI FOR SINGHI &
CO for Applicant(s) :
1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE C.K.BUCH
Date
: 13/08/2008
ORAL
ORDER
Heard
Shri Mihir Thakore, learned senior counsel appearing with Shri
Sandeep Singhi for Singhi & Co. for applicant.
By
way of this application, the applicant has prayed for dispensing
with the meeting of Unsecured Creditors of the applicant-Company. It
has also prayed for holding a meeting of the Equity Shareholders of
the applicant-Company for the purpose of considering and, if thought
fit, approving with or without modification(s), the arrangement
embodied in the Composite Scheme of Arrangement between Carnation
Nutra-Analogue Foods Limited and Cadila Healthcare Limited and Zydus
Hospitals and Medical Research Private Limited and their respective
shareholders and creditors (Composite Scheme) and for issuing
appropriate directions incidental for holding of such meetings.
By
the present Composite Scheme there would be reductions of Securities
Premium Account. The said reduction is an integral part of the
Composite Scheme and the applicant-Company has prayed for dispensing
with following a separate procedure for the said reduction.
By
the present Composite Scheme there would be an increase in the
Authorized Capital of the applicant-Company. The said increase in
Authorized Capital is also an integral part of the Composite Scheme
and the applicant-Company has prayed for dispensing with following a
separate procedure for the increase in the Authorized Capital.
Upon
hearing Shri Mihir Thakore, learned senior counsel and upon perusal
of the application and supporting affidavit dated 11th
August 2008 filed by Shri Dhaval N. Soni and the annexures referred
to therein (Annexure-G being the copy of the Composite Scheme) and
the affidavit dated 13th August 2008, it is directed as
under :
A
meeting of the Equity Shareholders of the applicant-Company shall be
convened and held at Thakorbhai Desai Hall, Near Law Garden,
Ellisbridge, Ahmedabad-380006, on Thursday, the 18th day
of September 2008 at 10-00 a.m. (1000 hrs.) for the purpose of
considering, and if thought fit, approving with or without
modification, the arrangement embodied in the Composite Scheme.
At
least 21 clear days before the day appointed for the meetings to be
held as aforesaid, an advertisement convening the said meetings
indicating the day, the date, the place and the time aforesaid and
stating that copies of the Composite Scheme, the 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 or at the office of its Advocates,
i.e. M/s. Singh & Co., 7-8, Premchand House Annexe, Ashram Road,
Old High Court Way, Ahmedabad-380009, be inserted once in Indian
Express, Ahmedabad Edition and Sandesh, Ahmedabad Edition.
Publication of the advertisement in the Gujarat Government Gazette
is dispensed with.
In
addition, at least 21 clear days before the day appointed for the
meetings to be held as aforesaid, an advertisement convening the
said meetings indicating the day, the date, the place and the time
aforesaid and stating that copies of the Composite Scheme, the
statement required to be furnished pursuant to Section 393 of the
Companies Act, 1956 and Form of Proxy, shall be sent by pre-paid
letter post under the Certificate of Posting addressed to each of
the Equity Shareholders and Unsecured Creditors of the
applicant-Company at their respective registered or last known
addresses. The Notice shall be sent to the Equity Shareholders of
the applicant-Company with reference to the list of persons
appearing on the record of the applicant-Company and its register as
on 08th August 2008.
The
settling and/or approval of the advertisement, the form of Notice
and the Statement to accompany the Notice by the Registrar of this
Court is dispensed with.
Mr.Mukesh
M. Patel, Director of the applicant-Company, and in his absence
Mr.Manubhai K. Patel, Director of the applicant-Company and in his
absence Mr.Jitendra R. Patel, Director of the applicant-Company,
shall be the Chairman of the aforesaid meeting to be held on
Thursday, the 18th day of September 2008 and in respect
of any adjournment or adjournments thereof.
The
Chairman appointed for the aforesaid meeting shall issue the
advertisement and send out the notices of the meeting referred to
hereinabove. The Chairmen are free to avail the services of the
applicant-Company or their officers or servants or agents or any
other agency for carrying out the said direction. It is further
directed that the Chairman of the meetings shall have all powers
under the Articles of Association of the applicant-Company and under
the Companies (Court) Rules, 1959 in relation to conduct of meeting
including an amendment to the aforesaid Composite Scheme or
resolutions, if any, proposed at the aforesaid meetings by any
person(s) and to ascertain the decision of the aforesaid meeting on
the poll.
The
quorum for the meeting of the Equity Shareholders shall be 5 persons
present in person.
The
voting by proxy be permitted, provided that the proxy in the
prescribed form duly signed by the person entitled to attend and
vote at the meeting, is filed with the applicant-Company at its
Registered Office at ?SZydus Tower??, Satellite Cross Roads,
Sarkhej-Gandhinagar Highway, Ahmedabad-380015, not later than 48
hours before the meeting.
The
value of each Equity Shareholders shall be in accordance with the
books of the applicant-Company and where the entries in the books
are disputed, the Chairman shall determine the value for purposes of
the meeting and his decision in that behalf shall be final.
It
is further directed that the Chairman shall report to this Court the
result of the said meetings within 14 (fourteen) days of the
conclusion of the meeting and the said report shall be verified by
his affidavit.
Shri
Mihir Thakore, learned senior counsel appearing for the
applicant-Company, submits that the meeting of the Unsecured
Creditors of the applicant-Company is not required to be called for
as there is no compromise offered to any of the Creditors and
neither any liability of the Creditors under the Composite Scheme is
being reduced or extinguished. Shri Thakore submitted that there are
no Secured Creditors. Shri Thakore also stated that as per the
Audited Balance Sheet as 31st March 2008, there is an
excess of assets over liabilities of about Rs.24.47 crores in the
case of the applicant-Company. Further as on 31st March
2008, there is an excess of assets over liabilities of about Rs.4.73
crores in CPD of Cadila which is to be transferred to the
applicant-Company. As on 30th June 2008, there is also
an excess of assets over liabilities of Rs.26.28 crores of the
applicant-Company. Shri Thakore relied upon the order dated 31st
January 2003 passed by this Court in Company Application No.30 of
2003 and order dated 29th July 2008 in Company
Application No.426 of 2008 to the effect that when the interest of
the Creditors was in no way affected by the Scheme of Arrangement,
it is neither obligatory nor desirable to call a meeting of the
Unsecured Creditors to obtain their views on the Composite Scheme.
Shri
Mihir Thakore has submitted that there would be reduction of
Securities Premium Account, which shall be effected as an integral
part of Composite Scheme itself by way of a composite order from
this Court. Shri Thakore has further submitted that the Equity
Shareholders of the applicant-Company are to consider the Composite
Scheme in the meeting which includes the said reductions. As the
procedure under Section 101 read with Section 78 of the Companies
Act, 1956 being parimateria with the present proceedings, no
separate procedure for reductions of Securities Premium Account are
required to be followed. Shri Thakore has referred to Sections 100
and 101 of the Companies Act, 1956 and submitted that reductions
contemplated in the Composite Scheme do not involve either
diminution of liability in respect of unpaid share capital or
payment to the Shareholders of paid-up share capital and do not in
any manner affect the interest of Creditors and no meeting of
Creditors is required to consider the said reductions. Shri Mihir
Thakore has relied upon the order dated 31st January 2003
passed by this Court in Company Application No.30 of 2003 and the
order dated 29th July 2008 passed by this Court in
Company Application No.426 of 2008, wherein this Court has dispensed
with the following a separate procedure for reduction of capital.
Shri
Mihir Thakore has submitted that there would be increase in
Authorised Capital of the applicant-Company which shall be effected
as an integral part of Composite Scheme itself by way of a composite
order from this Court. Shri Thakore has further submitted that the
Equity Shareholders of the applicant-Company are to consider the
Composite Scheme in the meeting which includes the said increase in
the Authorised Capital. As the procedure for increase in Authorised
Capital being para materia with the present proceedings, no separate
procedure for increase in Authorised Capital is required to be
followed.
Upon
hearing the submissions of Shri Thakore and upon considering the
aforesaid orders cited by him, I am of the view that the meeting of
Creditors for considering the aforesaid Composite Scheme which
includes reduction is not required. I hold that no separate
procedure is required to be followed for reduction of Securities
Premium Account and increase in Authorised Capital, as the same is
part and parcel of the Composite Scheme.
In
view of aforesaid, the present application stands disposed of
accordingly.
(C.K.
Buch, J)
Aakar
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