1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 28th DAY OF FEBRUARY, 2013 BEFORE THE HON'BLE MR.JUSTICE ARAVIND KUMAR C.A.NO.217/2013 BETWEEN: Black & Decker India Private Limited 28, 'Akemp', 3rd Main, 1st Cross, Ejipura, Koramangala Ring Road, Bangalore-560 047 Karnataka, Represented by its Manager-Finance and Authorised Signatory, Mr.Rajeev Ranjan ...Applicant (By Sri.Rayappa Hadagali, Advocate for M/s Dua Associates, Advocates) AND: NIL ..Respondent This C.A is filed under Section 391 to 394 of the Companies Act, 1956 praying that for the reasons stated therein this Hon'ble Court may be pleased to:- Order that the meeting of the equity shareholders of the Applicant company under section 391 of the Companies Act, 1956 be dispensed with in view of the written consents given by all the Equity shareholders (the copies of which are annexed hereto and collectively marked as Annexure-M), if considered fit by this Hon'ble Court, or otherwise, that it be convened and held on such date and time as this Hon'ble Court may deem fit for the purposes of considering, and if 2 thought fit, approving, with or without modification(s), the scheme of Amalgamation of Blank* Decker India Private Limited Powers Anchor Products Private Limited and Stanley Black & Decker India Limited and their respective shareholders (hereinafter referred to as scheme) and etc., This C.A coming for orders this day, the court made the following: ORDER
Applicant - Company (transferor Company No.1) under this application is seeking for dispensation of convening of meeting of equity shareholders and unsecured trade creditors.
2. Applicant-company is registered under The Companies Act, 1956 and it was incorporated on 23.09,2008 with Registrar of Companies, Karnataka. Its registered office is located at the address shown in the cause title. The main object of the applicant company is to own, manage and sell directly, distribute and carry out services functions, manufacture either through itself or under contract manufacturing arrangement, power tool products etc., as enumerated in the memorandum and articles of association produced at Annexure-A. The authorized signatory has filed the affidavit wherein at paragraph 4 of the affidavit, the 3 authorized, issued, subscribed and paid-up share capital of the applicant-company has been indicated. It is also stated that subsequent to March, 31, 2012 authorised share capital of the company has been increased and it has issued 18,76,119 equity shares and its authorized, issued, subscribed and paid up share capital as on 30.09.2012 is specifically enumerated in paragraph 4 of the affidavit. It is also stated that subsequent to 30.09.2012 and till the date of filing of the petition, there is no change in the structure of share capital. Balance sheet of the company made up to 31.03.2012 is produced along with petition at Annexure-B. Unaudited balance sheet as on 30.09.2012 indicating assets and liabilities of the applicant-company is produced at Annexure-C.
3. The Board of Directors of the applicant-company in its meeting held on 22.01.2013 has resolved, approved and adopted the Scheme of Amalgamation of Black & Decker India, Powers Anchor Products Private Limited and Stanley Black & Decker India Limited subject to confirmation by this Court and also subject to confirmation by the High Court of Judicature at Bombay having jurisdiction in relation to 4 Powers Anchor Products Private Limited and Stanley Black & Decker India Limited who are second transferor and applicant - company and transferee company respectively. Said resolution is produced at Annexure-J which would indicate that Board of Directors of the applicant-company have approved the scheme of amalgamation which is produced at Annexure-K.
4. It is submitted that there are two equity shareholders in the applicant-company which is certified by a Chartered Accountant as per Annexure-L. The consent given by said shareholders of the applicant-company to the scheme of amalgamation are produced at Annexure-M.
5. Chartered Accountant of the applicant-company has also certified that as on 31.01.2013 there are no secured creditors and unsecured loan creditors are as per Annexure- N. As per the Certificate issued by Chartered Accountant, applicant-company has 55 unsecured trade creditors with a total value of ` 45,44,05,233/- as per Annexure appended to the said certificate. This figure is also recorded in the 5 balance sheet produced at Annexure-B. Affidavit of the authorized signatory would indicate majority of the trade creditors have given their consent for the scheme as per the letters produced along with petition and they are collectively marked as Annexure-Q. Unsecured trade creditors who have given their consent represent value of ` 43,14,41,281/- of trade creditors which is more than three-fourths (94.95%) of the total value of the unsecured trade creditors. Thus, majority in number representing more than three-fourths in value of the unsecured trade creditors of the applicant- company have given their consent in writing. It is also stated that insofar as unsecured trade creditors of the applicant-company are concerned, they will not in any way be affected by the proposed scheme as all the assets and liabilities of the transferor companies are being transferred to transferee company, which is a profit making company as per balance sheet at Annexure-H.
6. The applicant - company has disclosed all the relevant material in the petition and there is no impediment in law to grant the prayer sought for in the application. I am 6 of the considered view that same deserves to be granted. Hence, following order is passed:
1) Company Application is hereby allowed.
2) Convening of meeting of equity shareholders and unsecured trade creditors is dispensed with subject to;
(i) Applicant-company intimating the unsecured trade creditors who have not given consent to the scheme of amalgamation by serving them through Registered Post Acknowledgement Due or by Speed Post as they chose to do so and file acknowledgments along with affidavit of the authorized signatory indicating that same has been despatched and file the same along with the petition.
3) Petition shall be filed within two weeks from the date of receipt of copy of this order.