IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : 16.07.2010 C.P.No.133 of 2009 connected with C.A.No.114 of 2009 IN THE MATTER OF : SECTIONS 391 TO 394 OF THE COMPANIES ACT, 1956 AND IN THE MATTER OF SCHEME OF AMALGAMATION BETWEEN ACME Tele Energy Solutions Private Limited having its registered office at Plot No.2, Sector – 34, E.H.T.P., Gurgaon-122001, Haryana. ...Transferor Company/Petitioner Company No.1 AND Acme Tele Power Limited having its registered office at Plot No.2, Sector – 34, E.H.T.P., Gurgaon-122001, Haryana. ...Transferee Company/Petitioner Company-II CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA Present : Mr. Atul Sood, Advocate, for the applicant-petitioner. Mr. D.P.Ojha, Official Liquidator. HEMANT GUPTA, J. This is a petition under Section 391 to 394 of the Companies Act, 1956 for sanction and approval to the Scheme of Amalgamation between the Transferor Company and Transferee Company. The Transferor Company was incorporated as a private limited company under the name and style of “Surya Silicate Private Limited”. Subsequently, its named was changed to “ACME Tele Energy Solutions Private Limited” and fresh certificate of incorporation was issued on C.P.No.133 of 2009 06.06.2008. The authorized share capital of the transferor company as on 7.10.2009 is 20,00,000 equity shares of Rs.10 each and the paid up share capital is 8,78,961 equity shares of Rs.10 each. The Transferee Company was incorporated as a private limited company under the name of style of “Acme Tele Power Private Limited”. Subsequently, its named was changed to “Acme Tele Power Limited” on conversion to public limited company and fresh certificate was issued on 29.08.2005. The authorized share capital of the Transferee Company as on 07.10.2009 is 250,000,000 equity shares of Rs.2 each and 2,000,000 preference shares of Rs.10 each, whereas the paid up share capital is 16,33,10,035 equity shares of Rs.2 each. The Board of Directors of both the companies in their respective meeting held on 7.8.2009 considered the Scheme and approved the share exchange ratio and recommended the amalgamation. In CP No.114 of 2009 vide order dated 15.10.2009, the meeting of shareholders and unsecured creditors of Transferor Company and that of shareholders and the secured creditors of the Transferee Company was dispensed with, as they have given their consent in writing to the Scheme of Amalgamation. Subsequently, in the extra ordinary general meeting of shareholders of both the Companies, Para 2.1, 2.2 of Para II and Para 3.17 (g) of the Scheme was resolved to be modified. In the meeting of unsecured creditors of the Transferee Company pursuance to the notice published in ‘Financial Express (All India Edition)’ and ‘Jan Satta’ as well as in Official Gazette (Haryana), 164 unsecured creditors attended the meeting in person, through their authorized representative or through proxies aggregating to an unsecured debt of Rs.63,22,58,671.45. 156 unsecured creditors were present in person or 2 C.P.No.133 of 2009 through authorized representative and 8 unsecured creditors were present through proxies. The result of the voting is as under : a. 151 unsecured creditors had validly cast their votes; b. 12 unsecured creditors had invalidly cast their votes; c. 01 unsecured creditor had abstained from voting; d. the Scheme, with the modifications as put forth in the resolution, was approved by 150 unsecured creditors representing Rs.61,98,74,110.55 in value of the unsecured debt, out of 151 unsecured creditors, present and voting at the meeting, representing Rs.61,98,74,110.55 of the unsecured debt of the Transferee Company/Petitioner Company-II; and e. 01 unsecured creditor voted against the resolution. Thus, the Scheme of Amalgamation was approved by 99.33% in number representing 97.43% of the value of the total unsecured creditors, present and voting at the meeting of Unsecured Creditors of the Transferee Company. It has also been pointed out that the modified Scheme has been consented to by the shareholders, secured and unsecured creditors as well. In this Second Motion Petition, notices were ordered to be published in the daily newspapers i.e. Financial Express (All India Edition), Jan Satta (Hindi) and the Official Gazettee of the Haryana Government. The notices were also ordered to be issued to the Regional Director, Ministry of Corporate Affairs, Noida as well as the Official Liquidator. Dr. Navrang Saini, Regional Director, Ministry of Corporate Affairs, Noida in its report by way of an affidavit dated 11.2.2010 has referred to a complaint dated 23.11.2009 from M/s Cine India Group against the proposed Scheme of Amalgamation. M/s Cine India Group is one of the vendors of the Transferee Company. It is stated that an amount of Rs.47,89,650.32 is outstanding against the Company for almost about one and half year. It is further stated that despite correspondence and personal 3 C.P.No.133 of 2009 meeting with the Managing Director, CEO and Head of the concerned Department of the Company, the outstanding dues have not been paid till date. Dr. Saini has further stated that out of 164 unsecured creditors, who participated in voting, 150 unsecured creditors with debts of Rs.60,39,58,432 voted in favour of the Scheme and one unsecured creditor with debt of Rs.1,59,15,677 voted against the Scheme. The Companies have filed reply dated 17.2.2010 supported by an affidavit pointing out that M/s Cine India Group was served with notice of the meeting of unsecured creditors, but has chosen not to attend the same and has not chosen to exercise the franchise to vote either ‘for’ or ‘against’ the Scheme. It is further pointed out that M/s Cine India Group is an unsecured creditor of the Transferee Company and the rights and interests of M/s Cine India Group, if any, would remain unaffected, as that of an unsecured creditor of the Transferee Company. M/s Cine India Group has not filed any objection in pursuance of the notices published in newspapers to the Scheme of Amalgamation. It had not appeared in the meeting of funds secured creditors. Keeping in the fact that as a unsecured creditor of the transferee company, the rights and the interest of M/s Cine India Group shall not be affected, the observation in the report of the Regional Director, does not merit any further consideration. The Official Liquidator has also filed his report dated 20.4.2010 after examining the books of accounts/records of the petitioner companies from M/s Khurana Rajiv & Company, Chartered Accountants. Chartered Accountant has concluded that nothing prejudicial to the interest of its members or to the public interest in the event of amalgamation of these companies has been noticed. Thus, it is concluded that in view of the observations made by the Chartered Accountant, the matter may be decided on merits. 4 C.P.No.133 of 2009 The petitioner companies have further confirmed that there are no investigations or proceedings pending against the transferor or transferee companies under Sections 235 and 251 of the Companies Act and the Scheme of Amalgamation/Merger in no way runs contrary to the public policy nor it affects the interest of the share-holders, secured/unsecured creditors of the transferee/transferor companies and there is no reservation from the Official Liquidator. Therefore, the Scheme of Amalgamation (Annexure P-1) is approved. The Scheme shall be binding on the petitioner companies, their respective share-holders, secured & un-secured creditors and all concerned. The transferor company shall be dissolved without being wound up. A certified copy of the order shall be filed with the Registrar of Companies within 14 days from the date of receipt of certified copy of this order, in Form No.41. A notice of the orders be published in the newspapers i.e. Financial Express (All India Edition), Jan Satta (Hindi) and the Official Gazettee of the Haryana Government. Any person interested shall be at liberty to apply to the Court for any direction as per law. Disposed of accordingly. 16.07.2010 (HEMANT GUPTA) Vimal JUDGE 5