Sabari Rubber Private Limited Vs Parampuzha Treads Private Limited (NCLT Kochi)
Under Section 230(9) of the Companies Act, 2013, the Tribunal may dispense with calling of a meeting of Creditors or class of Creditors where such Creditors or class of Creditors, having at least 90% value, agree and confirm, by way of affidavit, to the scheme of compromise or arrangement.
It is found that the Applicant Companies have received consent affidavits from all the Equity shareholders and No Objection Certificates (NOC) from the Unsecured Creditors regarding their unequivocal, unconditional consent to the scheme. In their respective consent affidavit, each of the Equity Shareholders has also waived their right for the notice for calling their meeting of the Equity shareholders and also waive the right to attend and participate in such meeting of the Equity shareholders or any other process in connection with the approval of the Scheme. The Unsecured Creditors in their NOC also mentioned that they do not have any objection against the Company seeking dispensation of holding of their meeting for approval of the Scheme as they already consent for the Scheme of Amalgamation.
In the IA (C/ACT) 37 KOB 2022 filed by the Applicant Companies, it is stated that there was difficulty in arranging the consent letters by way of an Affidavit from the unsecured creditors of the Applicant Company No.10 and No.13 as they are located in different parts of the country. It is stated that the Applicant Company No. 10 has 34 (Thirty-Four) unsecured creditors aggregating Rs. 43,71,551/- (Rupees Forty-Three Lakhs Seventy-One Thousand Five Hundred and Fifty-One only) and Applicant Company No.13 has 59 (Fifty-Nine) unsecured creditors aggregating Rs. 1,56,88,726/- (Rupees One Crore Fifty-Six Lakhs Eighty-Eight Thousand Seven Hundred and Twenty-Six only).
Taking into consideration the application filed by the applicant companies and the documents filed therewith as well as the position of law, and the circumstances enumerated herein above and in the light of the decision in Jupiter Alloys & Steel (India) Limited (supra), We are of the considered opinion that the prayers of the Applicant Companies deserve to be allowed and that the meetings of the members and publication of notice of meetings in the newspapers of the Transferor Companies and Transferee Company as envisaged under Section 230(1) of the Companies Act, 2013 is not necessary and will not serve any purpose, if called, be dispensed with subject to strict compliance of the conditions laid down in Para 25 below.
FULL TEXT OF THE NCLT KOCHI ORDER
1. This is a joint application filed under Sections 230-232 of the Companies Act, 2013 (hereinafter referred to as CA 2013) read with Rule 15 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 by Sabari Rubber Private Limited (hereinafter referred to as the First Applicant Company), Parampuzha Treads Private Limited (hereinafter referred to as the Second Applicant Company), Kaveri Treads Private Limited (hereinafter referred to as the Third Applicant Company) , Sona Rubber Private Limited (hereinafter referred to as the Fourth Applicant Company), Peacock Rubbers Private Limited (hereinafter referred to as the Fifth Applicant Company), Guardian Rubber Private Limited (hereinafter referred to as the Sixth Applicant Company),Southern Agro Trades and Services Private Limited (hereinafter referred to as the Seventh Applicant Company), Ideal Rubber Private Limited (hereinafter referred to as the Eighth Applicant Company), Midland Treads Limited (hereinafter referred to as the Ninth Applicant Company), Midas Retreads India Private Limited (hereinafter referred to as the Tenth Applicant Company), Zeus Rubber Private Limited (hereinafter referred to as the Eleventh Applicant Company), Sumeru Rubber Private Limited (hereinafter referred to as the Twelfth Applicant Company) and Standard Treads Private Limited (hereinafter referred to as the Thirteenth Applicant Company/ Transferee Company). The Transferor Company and the Transferee Company (collectively referred to as the Applicant Companies’) seeking sanction of the Scheme of Amalgamation between them.
2. The Applicant Companies submits that no one will be prejudiced if an order is made and/or directions are given and sought for the following:
I. Dispensation of Equity Shareholder’s Meeting
i. That meeting of the Equity Shareholders of First Applicant company be waived/dispensed with in view of the consent affidavits received from all the 8 (Eight) Equity Shareholders of First Applicant Company.
ii. That meeting of the Equity Shareholders of Second Applicant company be waived/dispensed with in view of the consent affidavits received from all the 8 (Eight) Equity Shareholders of Second Applicant Company.
iii. That meeting of the Equity Shareholders of Third Applicant company be waived/dispensed with in view of the consent affidavits received from all the 10 (Ten) Equity Shareholders of Third Applicant Company.
iv. That meeting of the Equity Shareholders of Fourth Applicant company be waived/dispensed with in view of the consent affidavits received from all the 4 (Four) Equity Shareholders of Fourth Applicant Company.
v. That meeting of the Equity Shareholders of Fifth Applicant company be waived/dispensed with in view of the consent affidavits received from all the 8 (Eight) Equity Shareholders of Fifth Applicant Company.
vi. That meeting of the Equity Shareholders of Sixth Applicant company be waived/dispensed with in view of the consent affidavits received from all the 11 (Eleven) Equity Shareholders of Sixth Applicant Company.
vii. That meeting of the Equity Shareholders of Seventh Applicant company be waived/dispensed with in view of the consent affidavits received from all the 9 (Nine) Equity Shareholders of Seventh Applicant Company.
viii. That meeting of the Equity Shareholders of Eighth Applicant company be waived/dispensed with in view of the consent affidavits received from all the 6 (Six) Equity Shareholders of Eighth Applicant Company.
ix. That meeting of the Equity Shareholders of Ninth Applicant company be waived/dispensed with in view of the consent affidavits received from all the 8 (Eight) Equity Shareholders of Ninth Applicant Company.
x. That meeting of the Equity Shareholders of Tenth Applicant company be waived/dispensed with in view of the consent affidavits received from all the 4 (Four) Equity Shareholders of Tenth Applicant Company.
xi. That meeting of the Equity Shareholders of Eleventh Applicant company be waived/dispensed with in view of the consent affidavits received from all the 8 (Eight) Equity Shareholders of Eleventh Applicant Company.
xii. That meeting of the Equity Shareholders of Twelfth Applicant company be waived/dispensed with in view of the consent affidavits received from all the 10 (Ten) Equity Shareholders of Twelfth Applicant Company.
xiii. That meeting of the Equity Shareholders of Thirteenth Applicant company be waived/dispensed with in view of the consent affidavits received from all the 8 (Eight) Equity Shareholders of Thirteenth Applicant Company.
II. Dispensation of Preference Shareholder’s Meeting.
That there are no Preference Shareholders in any of the Applicant Companies. Hence the question of convening and holding the meeting of Preference Shareholders does not arise.
III. Dispensation of Secured Creditors Meeting
That there are no Secured Creditors in any of the Applicant Companies. Hence the question of convening and holding the meeting of Secured Creditors does not arise.
IV. Dispensation Unsecured Creditors Meeting
i. That there are 4 (Four) Unsecured Creditors having aggregating outstanding amount to the extent of Rs. 4,77,950/- in the First Applicant Company as on 31st day of March, 2021. The present Scheme is an arrangement between the First Applicant Company and its Shareholders as contemplated under Section 230 of the Companies Act, 2013 and there is no Compromise and/or Arrangement with the Creditors as no sacrifice is called for. The rights of the Unsecured Creditors will not be affected as all the creditors would be paid off in the ordinary course of business. The Applicant undertakes to issue individual notices to all its Unsecured Creditors. Hereto annexed and marked as Annexure 45 the Certificate of Chartered Accountant certifying and disclosing the list of Unsecured Creditors of First Applicant Company along with the No Objection Letters received from all the Unsecured Creditors for the merger and dispensing off of Unsecured Creditors meeting.
ii. That there are 5 (Five) Unsecured Creditors having aggregating outstanding amount to the extent of Rs. 4,32,708 /- in the Second Applicant Company as on 31st day of March, 2021. The present Scheme is an arrangement between the Second Applicant Company and its Shareholders as contemplated under Section 230 of the Companies Act, 2013 and there is no Compromise and/or Arrangement with the Creditors as no sacrifice is called for. The rights of the Unsecured Creditors will not be affected as all the creditors would be paid off in the ordinary course of business. The Applicant undertakes to issue individual notices to all its Unsecured Creditors. Hereto annexed and marked as Annexure 46 the Certificate of Chartered Accountant certifying and disclosing the list of Unsecured Creditors of Second Applicant Company along with the No Objection Letters received from all the Unsecured Creditors for the merger and dispensing off of Unsecured Creditors meeting.
iii. That there are 5 (Five) Unsecured Creditors having aggregating outstanding amount to the extent of Rs. 4,84,680 /- in the Third Applicant Company as on 31st day of March, 2021. The present Scheme is an arrangement between the Third Applicant Company and its Shareholders as contemplated under Section 230 of the Companies Act, 2013 and there is no Compromise and/or Arrangement with the Creditors as no sacrifice is called for. The rights of the Unsecured Creditors will not be affected as all the creditors would be paid off in the ordinary course of business. The Applicant undertakes to issue individual notices to all its Unsecured Creditors. Hereto annexed and marked as Annexure 47 the Certificate of Chartered Accountant certifying and disclosing the list of Unsecured Creditors of Third Applicant Company along with the No Objection Letters received from all the Unsecured Creditors for the merger and dispensing off of Unsecured Creditors meeting.
iv. That there are 3 (Three) Unsecured Creditor having aggregating outstanding amount to the extent of Rs. 758/- in the Fourth Applicant Company as on 31st day of March, 2021. The present Scheme is an arrangement between the Fourth Applicant Company and its Shareholders as contemplated under Section 230 of the Companies Act, 2013 and there is no Compromise and/or Arrangement with the Creditors as no sacrifice is called for. The rights of the Unsecured Creditors will not be affected as all the creditors would be paid off in the ordinary course of business. The Applicant undertakes to issue individual notices to all its Unsecured Creditors. Hereto annexed and marked as Annexure 48 the Certificate of Chartered Accountant certifying and disclosing the list of Unsecured Creditors of Fourth Applicant Company along with the No Objection Letters received from all the Unsecured Creditors for the merger and dispensing off of Unsecured Creditors meeting.
v. That there are 5 (Five) Unsecured Creditors having aggregating outstanding amount to the extent of Rs. 12,66,837.87/- in the Fifth Applicant Company as on 31st day of March, 2021. The present Scheme is an arrangement between the Fifth Applicant Company and its Shareholders as contemplated under Section 230 of the Companies Act, 2013 and there is no Compromise and/or Arrangement with the Creditors as no sacrifice is called for. The rights of the Unsecured Creditors will not be affected as all the creditors would be paid off in the ordinary course of business. The Applicant undertakes to issue individual notices to all its Unsecured Creditors. Hereto annexed and marked as Annexure 49 the Certificate of Chartered Accountant certifying and disclosing the list of Unsecured Creditors of Fifth Applicant Company along with the No Objection Letters received from all the Unsecured Creditors for the merger and dispensing off of Unsecured Creditors meeting.
vi. That there are 5 (Five) Unsecured Creditors having aggregating outstanding amount to the extent of Rs. 8,69,234/- in the Sixth Applicant Company as on 31st day of March, 2021. The present Scheme is an arrangement between the Sixth Applicant Company and its Shareholders as contemplated under Section 230 of the Companies Act, 2013 and there is no Compromise and/or Arrangement with the Creditors as no sacrifice is called for. The rights of the Unsecured Creditors will not be affected as all the creditors would be paid off in the ordinary course of business. The Applicant undertakes to issue individual notices to all its Unsecured Creditors. Hereto annexed and marked as Annexure 50 the Certificate of Chartered Accountant certifying and disclosing the list of Unsecured Creditors of Sixth Applicant Company along with the No Objection Letters received from all the Unsecured Creditors for the merger and dispensing off of Unsecured Creditors meeting.
vii. That there are 4 (Four) Unsecured Creditors having aggregating outstanding amount to the extent of Rs. 4,79,63,785/- in the Seventh Applicant Company as on 31st day of March, 2021. The present Scheme is an arrangement between the Seventh Applicant Company and its Shareholders as contemplated under Section 230 of the Companies Act, 2013 and there is no Compromise and/or Arrangement with the Creditors as no sacrifice is called for. The rights of the Unsecured Creditors will not be affected as all the creditors would be paid off in the ordinary course of business. The Applicant undertakes to issue individual notices to all its Unsecured Creditors. Hereto annexed and marked as Annexure 51 the Certificate of Chartered Accountant certifying and disclosing the list of Unsecured Creditors of Seventh Applicant Company along with the No Objection Letters received from all the Unsecured Creditors for the merger and dispensing off of Unsecured Creditors meeting.
viii. That there are 5 (Five) Unsecured Creditors having aggregating outstanding amount to the extent of Rs. 3,90,003/- in the Eighth Applicant Company as on 31st day of March, 2021. The present Scheme is an arrangement between the Eighth Applicant Company and its Shareholders as contemplated under Section 230 of the Companies Act, 2013 and there is no Compromise and/or Arrangement with the Creditors as no sacrifice is called for. The rights of the Unsecured Creditors will not be affected as all the creditors would be paid off in the ordinary course of business. The Applicant undertakes to issue individual notices to all its Unsecured Creditors. Hereto annexed and marked as Annexure 52 the Certificate of Chartered Accountant certifying and disclosing the list of Unsecured Creditors of Eighth Applicant Company along with the No Objection Letters received from all the Unsecured Creditors for the merger and dispensing off of Unsecured Creditors meeting.
ix. That there are 4 (Four) Unsecured Creditors having aggregating outstanding amount to the extent of Rs. 8,400/- in the Ninth Applicant Company as on 31st day of March, 2021. The present Scheme is an arrangement between the Ninth Applicant Company and its Shareholders as contemplated under Section 230 of the Companies Act, 2013 and there is no Compromise and/or Arrangement with the Creditors as no sacrifice is called for. The rights of the Unsecured Creditors will not be affected as all the creditors would be paid off in the ordinary course of business. The Applicant undertakes to issue individual notices to all its Unsecured Creditors. Hereto annexed and marked as Annexure 53 the Certificate of Chartered Accountant certifying and disclosing the list of Unsecured Creditors of Ninth Applicant Company along with the No Objection Letters received from all the Unsecured Creditors for the merger and dispensing off of Unsecured Creditors meeting.
x. That there are 34 (Thirty-Four) Unsecured Creditors having aggregating outstanding amount to the extent of Rs. 43,71,551/- in the Tenth Applicant Company as on 31st day of March, 2021. The present Scheme is an arrangement between the Tenth Applicant Company and its Shareholders as contemplated under Section 230 of the Companies Act, 2013 and there is no Compromise and/or Arrangement with the Creditors as no sacrifice is called for. The rights of the Unsecured Creditors will not be affected as all the creditors would be paid off in the ordinary course of business. The Applicant undertakes to issue individual notices to all its Unsecured Creditors. Hereto annexed and marked as Annexure 54 the Certificate of Chartered Accountant certifying and disclosing the list of Unsecured Creditors of Tenth Applicant Company along with the No Objection Letters received from 29 (Twenty-Nine) Unsecured Creditors aggregating to Rs. 42,69,880/- (97.67% of the total amount payable to the Unsecured Creditors) for the merger and dispensing off of Unsecured Creditors meeting.
xi. That there are 8 (Eight) Unsecured Creditors having aggregating outstanding amount to the extent of Rs. 8,62,322/- in the Eleventh Applicant Company as on 31st day of March, 2021. The present Scheme is an arrangement between the Eleventh Applicant Company and its Shareholders as contemplated under Section 230 of the Companies Act, 2013 and there is no Compromise and/or Arrangement with the Creditors as no sacrifice is called for. The rights of the Unsecured Creditors will not be affected as all the creditors would be paid off in the ordinary course of business. The Applicant undertakes to issue individual notices to all its Unsecured Creditors. Hereto annexed and marked as Annexure 55 the Certificate of Chartered Accountant certifying and disclosing the list of Unsecured Creditors of Eleventh Applicant Company along with No Objection Letters received from all the Unsecured Creditors for the merger and dispensing off of Unsecured Creditors meeting.
xii. That there are 4 (Four) Unsecured Creditors having aggregating outstanding amount to the extent of Rs. 51,136/- in the Twelfth Applicant Company as on 31st day of March, 2021. The present Scheme is an arrangement between the Twelfth Applicant Company and its Shareholders as contemplated under Section 230 of the Companies Act, 2013 and there is no Compromise and/or Arrangement with the Creditors as no sacrifice is called for. The rights of the Unsecured Creditors will not be affected as all the creditors would be paid off in the ordinary course of business. The Applicant undertakes to issue individual notices to all its Unsecured Creditors. Hereto annexed and marked as Annexure 56 the Certificate of Chartered Accountant certifying and disclosing the list of Unsecured Creditors of Twelfth Applicant Company along with the No Objection Letters received from all the Unsecured Creditors for the merger and dispensing off of Unsecured Creditors meeting.
xiii. That there are 59 (Fifty-Nine) Unsecured Creditors having aggregating outstanding amount to the extent of Rs. 1,56,88,726.60/- in the Thirteenth Applicant Company as on 31st day of March, 2021. The present Scheme is an arrangement between the Thirteenth Applicant Company and its Shareholders as contemplated under Section 230 of the Companies Act, 2013 and there is no Compromise and/or Arrangement with the Creditors as no sacrifice is called for. The rights of the Unsecured Creditors will not be affected as all the creditors would be paid off in the ordinary course of business. The Applicant undertakes to issue individual notices to all its Unsecured Creditors. Hereto annexed and marked as Annexure 57 the Certificate of Chartered Accountant certifying and disclosing the list of Unsecured Creditors of Thirteenth Applicant Company along with the No Objection Letters received from 43 (Forty-Three) Unsecured Creditors aggregating to Rs. 1,53,40,692.60/- (97.78% of the total amount payable to the Unsecured Creditors) for the merger and dispensing off of Unsecured Creditors meeting.
V. The Applicant Companies request that the directions be issued for serving the Notice on the Central Government, the Registrar of Companies- Kerala, Income Tax authorities and Official Liquidator under the provisions of Section 230(5) of the Companies Act, 2013.
3. Details of Applicant Companies:
i. The First Applicant Company, was incorporated on the 13th day of July, 1979 with Corporate Identity Number U25191KL1979PTC003085. As per Sub clause 5 of Clause III B of the Memorandum of Association, it has powers to amalgamate with any other Company. As per the latest Audited Balance Sheet, the Share Capital of the First Applicant Company as on the 31st day of March, 2021 is as under:
