9911796707
TMI Blog2008 (7) TMI 1126X X X X Extracts X X X X X X X X Extracts X X X X ..... s, by itself or through its nominees, 100% of the equity shares of the transferor company. The scheme of amalgamation would, therefore, ensure a consolidation of the business. Both companies compliment each other's strength and capabilities and post amalgamation would enhance the transferee company's effectiveness. The scheme of amalgamation is commercially and economically viable and feasible and would make available larger benefits, financial, managerial, technical etc. to the amalgamated business entity. The amalgamation would necessarily lead to a rationalization of administration, organizational efficiencies, reduction in overhead and other expenses and optimal utilization of recourses. 3. It is further submitted that the Board of Directors of the petitioner/transferor company has approved the draft scheme, as is apparent from the Board resolution (Annexure P-2). The transferor company was incorporated on 26.7.1976 and after change of its name is now known as Sargon Geosynthetics Limited with its registered office at Gurgaon. The principal objects have been detailed in the Memorandum and Articles of Association of the Transferor Company (Annexure P-3). As per the docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition, the objector has also filed a petition for winding up of the transferor company. It is further argued that the clauses in the scheme of amalgamation, which appears to protect the rights of creditors, would not suffice to dispense with the meeting of unsecured creditors. A meeting of unsecured creditors is mandatory and can only be dispensed with, where all unsecured creditors agree that such a meeting be waived. It is further submitted that the scheme of amalgamation be rejected, as the transferor company has not filed the latest audited statement of accounts. The latest audited statement of accounts, appended as Annexure P-4 is for the year ending March, 2007. The balance sheet, as on 31.3.2008, does not bear the signatures or stamp of a Chartered Accountant or of any Director of the company. It is argued that no reason has been set out for waiver of the meeting of secured and unsecured creditors and in the absence thereof, the petitioner-company be directed to convene meetings of secured/unsecured creditors. It is also submitted that the petitioner is an unsecured creditor and as on 31.12.2007 is owned a sum of Rs. 40,26,198/- by the petitioner company. Before filing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exercise of its discretion, and upon being satisfied of the need to do so, waive the convening, holding and conducting of meetings of equity shareholders, secured and unsecured creditors. It is, therefore, apparent that in view of the prayer for waiver of meetings, this Court would be called upon to opine as to the bona fides of the prayer for waiver and whether the objector has pointed out any legal or factual impediment that should lead to a rejection of the prayer for waiver of meetings. 11. The only objection, against the prayer for waiver of the meeting has been raised by an unsecured creditor, namely, Bharat Spun Pipe Construction Co. In essence, it is asserted that the petitioner-transferor company should discharge its debt towards the objecting company before the scheme is sanctioned, as sanction of the scheme without holding a meeting of unsecured creditors would adversely affect the rights of the creditors, and a meeting of unsecured creditors be, therefore, convened so as to ascertain their views with respect to the scheme of amalgamation. 12. As noticed herein above, and more particularly by reference to the clauses of the scheme of amalgamation, the rights of cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme, and subject to the provisions of this Scheme, all contracts, deeds, bonds, agreements, arrangements, assurances and other instruments of whatsoever nature including all tenancies, leases licenses ('the Contracts') to which the Transferor Company is a party or to the benefit of which the Transferor Company may be eligible and which are subsisting or having effect immediately before the Effective Date, shall be in full force and effect in favour of or against the Transferee Company and may be enforced as fully and effectually as if, instead of the Transferor Company, the Transferee Company had been a party or obligee thereto. The Transferee Company may if and wherever necessary, enter into and/or issue and/or execute deeds, writings, or confirmations, at any time, enter into any tripartite arrangements, confirmations, or novations, prior to the Effective Date, to which the Transferor Company, will, if necessary, also be a party in order to give formal effect to the provisions of this clause. (b) The Transferee Company may, at or any time after the coming into effect of this Scheme, in accordance with the provisions hereof, if so required, under any law or otherwise, exec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ights. The scheme of amalgamation cannot be used as a tool by a creditor to recover his money or to coerce a company to pay its dues, whether disputed or not. The objector, in my considered opinion, has failed to allege or assert that the scheme is in any manner mala fide or fraudulent. The objector has failed to advance any substantial argument to show that the scheme would adversely affect his rights or the rights of creditors. 17. As noticed herein above, the interest of creditors, both secured and unsecured, has been adequately protected by the scheme and more particularly when counsel for the petitioner, by reference to the relevant clause of the scheme of amalgamation, has submitted that the claims of all unsecured creditors, if established, would be the liability of the transferee company, I find no reason to accept the objections, against a plea for waiver of the meetings. The objections are, therefore, rejected. However, it would be necessary to mention here that the objector would be entitled to raise any such objection, as may be available to him, during the stage of second motion. 18. In view of what has been stated above, I find no impediment factual or legal, in the e ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
