H.P. Chaturvedi, Member - (1.) The instant first motion company application is filed before this bench by the applicant companies under section 230 of the Companies Act, 2013 read with Rule 24(2) of the Companies (Compromises, Arrangements Amalgamation) Rules, 2016 and Rule 11 of the National Company Law Tribunal, 2016. The petitioner/applicant companies have sought for following prayer to be granted by this Tribunal in respect of dispensation with the meeting of their unsecured/secured creditors and for further order for dispensing with the physical meeting of shareholders of the demerge company/transferee company for consideration and approval of the proposed composite scheme of arrangement with or without modification by this Tribunal. Instead thereof a process of postal ballot and e-voting be directed to be conducted for consideration and approval of the composite scheme of arrangement. The petitioners have further requested for issue of direction to appoint a scrutinizer (Sri R.S. Bhatia, Practicing Company Secretary) for conducting such process of e-voting and of postal ballot of shareholders in a fair and transparent manner and to make a report about the result of the same to this Tribunal and also to get published the such result in the newspaper. The relevant portion of the prayers sought for in the present company petition is incorporated in para 15 (prayer clause) are being reproduce hereinbelow: "It is therefore, most respectfully submitted that this Hon'ble Tribunal may be pleased to: (a), pass an order that a meeting of Unsecured Creditors of the Demerged Company/Transferee Company may be dispensed with for consideration and approval of the Composite Scheme of Arrangement for amalgamation with or without modification(s). (b). pass an order that a meeting of Secured Creditors of the Demerged Company/Transferee Company may be dispensed with for consideration and approval of the Composite Scheme of Arrangement with or without modification(S) subject to their no objection letter to be filed with Second Motion Petition; (c). pass an order that a view of prayer (a) and (b) above no notice for dispensing the meeting of Secured Creditors and Unsecured Creditors of the Demerged Company be published in one English and one Hindi newspaper having circulation in the city of Ghaziabad i.e. where the Registered Offices of the petitioner company is situated. (d). pass an order that physical meeting of the shareholders of the Demerged Company/Transferee may be dispensed with for consideration and approval of the Composite Scheme of Arrangement with or without modification(s); (e). pass an order to obtain the approval of the shareholders of the Demerged Company/Transferee Company through the process of postal ballot and e-voting for the Composite Scheme of Arrangement; (f), issuing necessary direction for appointment of a scrutinizer for conducting the process of postal ballot in fair and transparent manner for submission of the result of the postal ballot with this Hon'ble Tribunal Mr. R.S. Bhatia, Practicing Company Secretary, having 20 years' experience in practice, to act as a scrutinizer are proposed and, if found appropriate, be considered by this Hon'ble Tribunal it is further submitted that the place for submission of physical postal ballot forms be kept at the registered office of the company, (g). issuing necessary direction fixing a time period within which the chairperson reports the result of the postal ballot to this Hon'ble Tribunal (h). pass an order that in view of prayer (e) above, notice to obtain the approval of shareholders of the Transferee company through postal ballot and e-voting be published in one English and one Hindi newspaper having circulation in the city Ghaziabad' i.e. where the registered office of the petitioner company is situated. (i), pass an order that a meeting of Equity Shareholders and unsecured creditors of the resulting company may be dispensed with for consideration and approval of the composite scheme of Arrangement with or without modification(s). (j). pass an order that in view of the prayer (g) above, no notice for dispensing the meeting of shareholders and unsecured creditors of the resulting company be published in one English and one Hindi newspaper having circulation in the city Ghamabad; i.e. where the registered office of the petitioner company is situated. (k). pass an order that a meeting of equity shareholders of the Transferor Company-1 may be dispensed with for consideration and approval of the composite scheme of Arrangement with or without modification(s). (l). pass an order that in view of prayer (k) above, no notice for dispensing the meeting of shareholders of the Transferor Company-1 be published in one English and one Hindi newspaper having circulation in the city where the registered office of the company is situated; (m). pass an order that a meeting of equity shareholders of the Transferor Company-2 may be dispensed with for consideration and approval of the composite scheme of Arrangement with or without modification(s); (n). pass an order that in view of prayer (m) above, no notice for dispensing the meeting of shareholders of the Transferor Company-2 be published in one English and one Hindi newspaper having circulation in the city where the registered office of the company is situated; (o). issuing direction for permitting the filing of the applications, petition, other documents as may be required for the purpose of sanctioning the proposed composite scheme of Arrangement between the applicant companies. (p). pass such other and further orders as this Hon'ble Tribunal may deem fit in the facts circumstances of the case. (q). The above said notice be allowed to be got published in 'Business Standard, an English news daily and 'Business Standard' a Hindi news daily."
(2.) We have duly considered the above stated prayer being sought for by the applicant companies in the present scheme petition and perused the records/document annexed therewith. The salient feature and necessary facts about the applicant companies may be summarized as under: Demerged Company/Transferee Company Applicant Company No. 1. Sybly Industries Limited having its registered office at Pawan Puri. Muradnagar. Ghaziabad, U.P.-201206. Applicant Company No. 2. Space Incubatrics Technologies Limited having its registered office at Pawan Puri, Muradnagar, Ghaziabad, Uttar Pradesh-201206. -(Resulting Company) A-Board of Directors (Resolution) Considered the Composite Scheme of Merger on 04.07.2016 B-The resulting Company has been Incorporated on 29th June 2016 after APPOINTED DATE, as wholly owned subsidiary of the Demerged Company (Specifically for transfer and vesting of the non-core assets, related liabilities and reserves of Demerged Company. There is no change in the Capital Structure of the company as on the date of filling of the Application. C-No. of equity shareholders 7_All have given their consent ......Meeting be dispensed with (in the resulting Company. Besides the demerged/Transferee Co. which is the holding Co., Holding 14.3% of the paid up equity capital. All other shareholders are holding shares as the Nominees of the Demerged/Transferee Co. Thus virtually The Demerged/Transferee Co. holds 100% equity of the Resulting Co., thereby making a wholly Owned Subsidiary. All the shareholders have given their consent in writing to the proposed Composite Scheme of Merger.) Authorised Capital, 7 equity shares of Rs. 10/- each Total... 70.00 Issued Subscribed and Paid up Capital 7 equity shares of Rs. 10/- each Total...70.00 Since the Resulting co. was incorporated on 29.06.16 Supplementary Financial Statement as on 31.12.2016 as required under Sec. 232(2) of the Companies Act 2013 is appended as ANNEXURE-17 ...................................... Applicant Company No. 3. Vartex Fabrics Private Limited having its registered office at Pawan Puri, Muradnagar, Ghaziabad, Uttar Pradesh-201206 ............(Transferor company - 1) (Incorporated on 23 August 1995 the registered office of the Company is now shifted by the order of the Regional Director, Northern Region, Dated 16.02.2016) The Board of Directors considered the Composite Scheme on 20.06.16 There is no change in the Capital Structure of the Company as on date of filling of this Application. The main object set out in Memorandum Clause includes all activities to deal with in Yarn, fabrics, Textiles, ETC. Annexure 20 Sub clause 9 of Clause 3(b) Allows the arrangement (Annexure-20) Authorised Capital of 4,60,000/- equity shares of Rs. 10/- each i.e...Rs. 46,00,000.00/- Authorised Subscribed and Paid up capital...4,55,690 Equity Shares of Rs. 10/- each i.e. Rs. 45,56,900.00 Annual Report (31.03.2016). ANNEXURE-25 supplementary Report. ANNEXURE-26 (31.12.2016) ................................. Applicant Company No. 4. Dux Textiles Private Limited having its registered office at Pawan Puri, Muradnagar, Ghaziabad, U.P.-201206. transferor company (2) applicant company-4) list of directors-2 (Initially incorporated on 22 Sept, 1995 with Registrar of Companies Delhi and Haryana. Presently by order of Regional Director, Northern Region Dated 16th Feb. 2016.....PAGE-23 PARA-38 AUTHORISED ISSUED SUBSCIBED AND PAID UP CAPITAL OF THE TRANSFEROR COMPANY-2 AS ON THE APPOINTED DATE. 1ST APRIL 2016 IS AS FOLLOWS: Authorised Capital: 3,00,000/- equity shares of Rs. 10/- each i.e. Amounting to Rs. 30,00,000.00/- Issued subscribed and paid up capital 2,92, 270 Equity shares of Rs. 10/- each. 29,22,700.00 There is no change in the Capital Structure of the Company as on and upto date of filing of this application. The main object of the Memorandum of Association is to carry on the business of Mfg. Bleaching, Printing, Processing, Embroidering, Cleaning, Dealing in Fabric, denim linen, and other goods. Besides other activities The Board of Directors have considered the Composite Scheme on 20.06.16
(3.) The applicant company (demerged transferee company) through the affidavit of its Managing Director Sri Mittal has narrated about object and reason for proposed composite scheme of the arrangement. For the sake of convenience, the same are reproduced hereinbelow: ".....2. That the application under Section 230 of the Companies Act, 2013 ('Act') read with Rule 3 of the Companies (Compromises, Arrangement Amalgamation) Rules, 2016 ('Rules') in respect of the proposed composite scheme of arrangement for: (i). Demerger of all the investments, loans and advances given to wholly owned subsidiary and other entities, which do not pertain to the core activities i.e. manufacturing of 'Polyester Yarn' business to Sybly Industries Limited (hereinafter referred to as "Demerged Company or Transferee Company"), along with their connected liabilities and reserves and transfer and vesting the same with Space Incubatrics Technologies Limited ('Resulting Company') on going concern basis; (ii). Writing off entire accumulated losses of the demerged company, firstly through entire Securities Premium Account thereafter through General Reserves and the balance through the Share forfeiture Account in accordance with Section 52 and other applicable provisions of the Companies Act, 2013 and to carry forward the remaining accumulated tosses after the said adjustment (iii). Reduction of share capital of the demerged company upon the Composite Scheme coming into effect, and approval of the Composite Scheme pursuant to Sections 230-232 of the Companies Act, 2013 (Corresponding provisions of sections 391-394 of the erstwhile Companies Act, 1956) shall also be deemed to be the approval under Section 66 of the Companies Act, 2013 (corresponding provision of Sections 100 to 105 of the erstwhile Companies Act, 1956) for reduction and cancellation of share of the demerge company). (iv). Amalgamation of Vartex Fabrics Private Limited ('Transferor company 1') and Dux Textiles Private Limited ('Transferor Company 2') (collectively referred as 'Transferor Companies') with Sybly Industries Limited (Demerged Company/Transferee Company). 3. The Board of Directors of the Transferee Company, Transferor Company No. 1 and Transferor Company No. 2 considered the Composite Scheme of Arrangement at their respective Board Meeting held on 20.06.2016. The Board of Directors of Resulting Company considered the Composite Scheme of Arrangement at its meeting held on 04.07.2016.;