C.A.(CAA) 22/NCLT/AHM/2017. Case: In Re: Sun Pharma Medisales Private Limited Vs. Company Law Board
| Case Number | C.A.(CAA) 22/NCLT/AHM/2017 |
| Counsel | For Appellant: Swati Soparkar, Learned Advocate |
| Judges | Bikki Raveendra Babu, Member (J) |
| Issue | Company Law |
| Judgement Date | April 18, 2017 |
| Court | Company Law Board |
Order:
Bikki Raveendra Babu, Member (J), (Ahmedabad Bench)
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This joint Application is filed by Sun Pharma Medisales Private Limited (Transferor Company No. 1); Ranbaxy Drugs Limited (Transferor Company No. 2); Gufic Pharma Limited (Transferor Company No. 3); Vidyut Investments Limited (Transferor Company No. 4); and Sun Pharmaceutical Industries Limited (Transferee Company) under Sections 230 to 232 of the Companies Act, 2013 [hereinafter referred to as 'the Act'] seeking directions.
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All the Applicant Transferor Companies No. 1 to 4 are directly or indirectly wholly owned subsidiaries of the Applicant Transferee Company. The Applicant Transferee Company is the Holding Company of the Transferor Companies.
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The Transferor Companies No. 1 to 4, in their Board Meeting held on 9th November, 2016 approved the proposed Scheme of Arrangement in nature of amalgamation vide Annexures 'L-1 to L-3'. The Board of Directors of the Transferee Company by its Resolution dated 10th November, 2016 approved the proposed scheme of arrangement in the nature of amalgamation vide Annexure 'L-4'. The Transferor Companies No. 1 to 4 filed certified Audited Financial Statements as on 31st March, 2016.
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Transferee Company No. 1 filed Audited Financial Statement as on 1st April 2016 to 22nd September 2016 and as on 23rd September 2016 to 30th September, 2016. Transferor Companies No. 2, 3 and 4 filed Audited Financial Statements as on 30th September, 2016. Transferee Company filed its Audited Financial Statement as on 31st March, 2016 and Unaudited Financial Results of the Transferee Company as on 30th September, 2016. Transferee Company also filed true copy of the Audit Committee Report as on 10th November, 2016. Transferee Company filed certified true copy of the Observation Letter dated 14th February, 2017 issued by BSE Ltd., and NSE Ltd. The true copy of the Scheme of Amalgamation is filed Annexure "O". Applicant Companies also filed certified true copy of the Certificate on Accounting Treatment by Statutory Auditor.
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The Scheme of Arrangements provides for amalgamation of four Transferor Companies which are directly or indirectly wholly owned subsidiaries of Applicant Transferee Company into Applicant Transferee Company. It is further stated that all those four Applicant Transferor Companies are directly or indirectly wholly owned subsidiaries of Applicant Transferee Company. They choose to exercise their option available under sub-section (14) of Section 233 of the Act.
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Transferor Company No. 1 is having 7 (Seven) equity shareholders. The Chartered Accountant certified that there are only 7 shareholders in the Applicant Transferor Company No. 1. All the 7 shareholders of the Applicant Transferor Company No. 1 are the Limited Companies. The Consent Affidavits of all the shareholders of the Transferor Company No. 1 are filed vide Annexures R-1 to R-7. Applicant Transferor Company No. 1 filed Resolutions passed by all the 7 equity shareholder companies of the Applicant Transferor Company No. 1 vide Annexure-1 attached to the Additional Affidavit filed on 5th April, 2017 at Page Nos. 304 to 310.
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In view of the fact that Transferor Company No. 1 is the Subsidiary Company of the Transferee Company and also considering the Consent Affidavit given by all the equity shareholders of Transferor Company No. 1, the Meeting of the equity shareholders of the Transferor Company No. 1 to consider, and, if thought fit, to approve the proposed Scheme with or without modifications, is dispensed with. It is stated that there are no Secured Creditors of the Applicant Transferor Company No. 1. The Certificate of the Chartered Accountant, vide Annexure 'T at Page No. 221 shows that there are no Secured Creditors to the Transferor Company No. 1 as on 31st December, 2016. Therefore, it is held that there is no need to convene the Meeting of the Secured Creditors of the Transferor Company No. 1.
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Coming to the Unsecured creditors of Transferor Company No. 1, as per the certificate of the Chartered Accountant, there are 350 Unsecured Creditors of the value of Rs. 213.55 Millions, i.e., Rs. 2.135 Crores, vide Annexure "T".
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It is contended by the learned Counsel for the Applicants, that basing on the Net Worth Certificate of the Transferee Company indicating the pre-Scheme Net Worth of Rs. 216180.6 Millions, and post-Scheme Net Worth of Rs. 217528.9 Millions, as certified by the Chartered Accountant at Annexure "U", the Meeting of the Unsecured Creditors can be dispensed with.
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Section 230 sub-section (9) of the Act says that Meetings of any class of creditors can be dispensed with only in case if the creditors of the value of 90% gave consent for dispensation of the meeting of the creditors. In the case on hand, Transferor Company No. 1 did not file any Consent Letters of its Unsecured Creditors. Therefore, this Tribunal directs the Transferor Company No. 1 to hold the Meeting of Unsecured Creditors to consider and, if thought fit, to approve the proposed Scheme of Amalgamation with or without modifications.
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Second Transferor Company is having 7 (seven) shareholders and One Preference Shareholder as can be seen from the certificate of the Chartered Accountant, vide Annexure 'S' at Page No. 219. Applicant Transferor Company No. 2 filed the Consent Letters of all the 7 shareholders vide Annexures "R-8 to R-14". One of the shareholders of the Second Transferor Company is M/s. Sun Pharmaceutical Industries...
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