CO.APPL.(M)/134/2012 of HERO INVESTMENTS PVT LTD Vs ..

$-24* IN THE HIGH COUR]' OF DELHI AT [NEW ][DELHI]

% Date of Judgntent:10.9.2012

+ CO.A(M) No.134/2012

I{ERO INVESTMENTS PVT. LTD.

. . ..TRANSFEITOR COMPANY

AND

LTD. ......'I'RANSFEREE [COMPANY]I{ERO MOTOCORP

Through: Mr. S. Ganesh, Senior Advocate, [Mr. ][H.S]Chandhoke, Ms. Kalnalpreet Kaur and Ms.Deeksha Khurana, Advocates for theApplicant Companies.

CORAM:I{ON'BLE MS. JUS'NCE INDERMEET I(AUR

INDERMEET KAUR, J. (Oral)

1. This is first motion [joint ]application under [sections ][391 ][ancl ][3b4]of the Cornpanies Act. 1956, (fbr short ['the ]Act') in [connection]with the Scheme of Amalgamatiotr (for shorl 'schetne') [betlveetr]Flero Investments Private Lirnited [(hereinafter ][referreC ][to ][as]'J'ransferor Contpany') and Hertl MotoCorp [Limiterj ][(hereinafter]refer-red to as 'Transferee Cornpany'). So far as share [exchange]ratio is concerned, the scherne provides that, upon [coltting ][into]effect of the Scheme. thc f'rans1''eree Cornpany shall [issue ][and.allot]CO.A(M) No.134/201.2 l)age I of !2

Signature Not Verified

Digitally Signed By:AMULYACertify that the digital file andphysical file have been compared andthe digital data is as per the physicalfile and no page is missing.

equity shares to the shareholders of [the ][Transferor Company ][in ][the]following proportion:

8,65,3I,210 fully paid up equity shares of Rs. 2 [each ]of [the]Transferee Cornparry against 8,65,3I,210 fully [paid ][up ][equity]shares of Rs. 2 each of the Transferee Company [held ]by [the]Iransl'eror Company in the T'ransferee Company as on [June ][4.]2012 shall be issued and allotted to the equity shareholders ofTransferor Company, in proportion of their holdings in [Transferor]Company.

In tlre event the Transferor Company holds more than 8, 65,31,210fully paid up equity shares of the ['fransferee ]Company [(without]incurring any additional liability), such additional number of [equity]shares of the Transf'eree Company (if any) as may be held by [the]Transferor Compan)' in the ['fransferee ]Company in addition [to]8, 65, 3I,2I0 equity shat'es held by the Transferor Company in [the]Transferee Cornpany as on Juue 4. 2012 shall also be [issued ][and]allotted to the equity shareholders oJ'the Transferor Company, inproportion of their hc''ldings in the'Iransferor Company.

certified true copli of proposed Scheme and the valuation reportis filed along with the application as Annexure '6A3" andAnnexure [c' ]A4)) respectively.

2.The registered otfices of the [Transferor ][and ][Transferee]Companies is situated within the National Capital [Territory ][of]Delhi and is within the [jurisdiction ]of this Court.Companies is situated within the National Capital [Territory ][of]Delhi and is within the [jurisdiction ]of this Court.

3.Details r.vith regard to the date of [incorporation ][of ][Transferor ][and]Transferee Companies, their authorized, [issued, subscribed ][and]paid up capital have been given in the Application.Transferee Companies, their authorized, [issued, subscribed ][and]paid up capital have been given in the Application.

4.Copy of the Memorandurn and Articles of Association [as ][well ][as]the latest audited Annual Accounts for the [year ]ended [31st]March, 2012 of both the Applicant Companies [and ][unaudited]Accounts ending June 30, 2012 of the Applicant [Companies ][has]also been enclosed rvith the Application.the latest audited Annual Accounts for the [year ]ended [31st]March, 2012 of both the Applicant Companies [and ][unaudited]Accounts ending June 30, 2012 of the Applicant [Companies ][has]also been enclosed rvith the Application.

5.Learned Counsel lbr the Applicant Companies [subrnits ][that]no proceedings under sections 235 to 257 of the Act [are ][pending]against any of the Applicant Companies as on the date of [the]present Application.no proceedings under sections 235 to 257 of the Act [are ][pending]against any of the Applicant Companies as on the date of [the]present Application.

6.'the proposed Scheme has been approved by the Board ofDirectors of both the Applicant Companies. Copies of [the]Board Resolution have been filed along with [the ]Application.Directors of both the Applicant Companies. Copies of [the]Board Resolution have been filed along with [the ]Application.

7.T'he Transferee Corupanf is public company listed on [the ][BSE]Lirnited and National Stocl< .Exchange Limited. The [stock]exchange approvals have beeu filed [along ][with ][the ][Application.]Lirnited and National Stocl< .Exchange Limited. The [stock]exchange approvals have beeu filed [along ][with ][the ][Application.]

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CO.A(M) No.134/2012

8.The r\pplicant/1) angfcror Company [alcxrg ][with ][t.tie]Applicant/Jralsfefg ,iiq*tnon5,.have [rnade ][a ][joint ][application ][ttr]Applicant/Jralsfefg ,iiq*tnon5,.have [rnade ][a ][joint ][application ][ttr]the Cornpetition I"gi." lbi' the [approval ][to ][the]Qgpirniqsign..nf Qgpirniqsign..nf proposed combinatir-rn I l.' uldii' ":' 'Seitiol.31(1) of the C'ompetition., i,". - ,r "l r.. r "r -r..'t" t'., i,". - ,r "l r.. r "r -r..'t" t'Act, 2002. .ci;p;,, o t, [he' '^ll] aliproyal obtij t'. [ned ][from ][the ][Cornpetition]. """ [i ]"" [i ]Comrnission of Irrclid is innexecl with the application [as ][Arinexurc]'j'j

9.T'he status of the Shareholders, Secun':d [and.l-insecu'ed Creditors]cf the fiansferor arrrl Tijansl'ereq C11upa1iel; [and the ][consertts]obtainqd by thdm'tb,r, the'pr,ipbscd [Sr;hente,is ][clearly ][apparent]tronr the chart given irr the [' ]i 't

Application rvhicir is as below;. .

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CO.A(M) No.134/2012

Transferee Cornfi y--

10. Apart from the aforesaid, [the Transferor ][Company has ][2 ][trade]creditors as on June 30, 2012 [(Annexure ]A [1/10 ][pgs 227 ][to ][228)]and (Annexgre A1/12 aLpage23IA) [arr.l ][the Trausferee Cornpany]has 4195 trade creditors [as ][on ][June ][30, ][2012. ][The ][Applicant]Companies have sought exernption [couvening meeting ][of ][trade]creditors r,vho will be paid in [the ]ordinarl' [course ][of ][business. The]Applicant Companies subrnit tliat [the ][net ][worth ][of ][the ][Transferee]creditors as on June 30, 2012 [(Annexure ]A [1/10 ][pgs 227 ][to ][228)]and (Annexgre A1/12 aLpage23IA) [arr.l ][the Trausferee Cornpany]has 4195 trade creditors [as ][on ][June ][30, ][2012. ][The ][Applicant]Companies have sought exernption [couvening meeting ][of ][trade]creditors r,vho will be paid in [the ]ordinarl' [course ][of ][business. The]Applicant Companies subrnit tliat [the ][net ][worth ][of ][the ][Transferee]CO.A(M) No.134/2012Page 5 ofl2

Cornpany post merger will be sufficient to discharge the dues ofthe trade creditors. ['Ihe ]net lvorth certificates of [the ][Transferor]Cornpany (pre amalgamation) and that of the [Transferee]Company pre as rvell as post amalgarnation are annexed with theapplication as Arnexure 41/13 at pgs [232 ]to 233 [andAnnexure]A2/10 at pgs 429 to 431 respectively.

I 1. prayer has been made for dispensation of the requirementof convening separate meeting of [the(i) ][equity ][shareholders ][(ii)]secured creditors (iii) unsecured creditors [(other ][thar-r ][trade]of convening separate meeting of [the(i) ][equity ][shareholders ][(ii)]secured creditors (iii) unsecured creditors [(other ][thar-r ][trade]. creditors) [and ][(iv) ][tracle ][creditors ]of [the ][ApplicanVTransferor]Company and (a) secured creditors [(b) ][unsecured ][creditors ][(other]than trade creditors) of the Transfet'ee Company.Company and (a) secured creditors [(b) ][unsecured ][creditors ][(other]than trade creditors) of the Transfet'ee Company.

12. In view of the written consentsA{OC [given ][b1' ][all ][the ][Equity]Shareholders and the secured creditors of theApplicant/'fransferor Company the requirement of conveningmeetings of the equity shareholders ancl the secured creditors ofthe Transferot iornpany is dispensed [with. ][There are ][NIL]unsecured creditors other than trade creditors of the TransferorCompany. Therefore, the reqr,tirement clf convening the meetingof the unsecured creditors other [than ][Lrade ][creditors ][does ][not]arise. There are 2 trade creclitors of the ['ft'ansf'eror ]Compauy [as ][on]June 30, 2012, whose dues, the J'rans1'-eror Company submits willbe discharged in the ordirtary [course ]of [brrsiness. ][F'ufuhcr, ][in view]Shareholders and the secured creditors of theApplicant/'fransferor Company the requirement of conveningmeetings of the equity shareholders ancl the secured creditors ofthe Transferot iornpany is dispensed [with. ][There are ][NIL]unsecured creditors other than trade creditors of the TransferorCompany. Therefore, the reqr,tirement clf convening the meetingof the unsecured creditors other [than ][Lrade ][creditors ][does ][not]arise. There are 2 trade creclitors of the ['ft'ansf'eror ]Compauy [as ][on]June 30, 2012, whose dues, the J'rans1'-eror Company submits willbe discharged in the ordirtary [course ]of [brrsiness. ][F'ufuhcr, ][in view]

CO.A(Nt) l.lo. 1 34l?.0 1 2

of the submission made by the Applicant Companier ihut the networth of ine Tiansferee Company post merger will be sufficientto discharge the dues of the trade creditors of the TransferorCornpany, the requirement of convening the meeting of the tradecreditors is also dispensed with.

13. The Transferee Company is listed company. The TransfereeCompany has 70,945 equity shareholders as on August 03,2072.Necessary directions have been sought for convening meeting ofthe Equity Shareholders of the Applicantl Transferee Company.Consequently, I direct that the meeting of the EquityShareholders of the Transferee Company be held on November02,2012 at 10.30 A.M at Air Force Auditorium, Subroto Park,New Delhi-110010.

14. Mr.Raashi Beri, Advocate, Cell No.[REDACTED] is appointed asthe Chairperson and Mr.Sumit Pargal, Advocate Court, CellNo.971 1120071 is appointed as the Alternate Chairpersbn fcrr therneeting of Equity Shareholders of the Applicant/TransfereeCornpany. They would be paid fee of Rs.50,000/- each.Mr.Kishore Kumar, Offlcer of this Court, Cell No.[REDACTED]and Mr.Sudan Singh, Official of this Court, Cell No.[REDACTED]' shall provide secretarial assistance to the Chairperson and theAlternate Chairperson. They shall be paid fee of Rs.10,000/-each for this purpose.

CO.A(M) No.134/2012

Page T ol' 12

15. The Transf'eree [Cornpany ][is ][also ][directed ][to ][publish ][advance]notice of the afbresaid [proposed ][meeting ][in ][Financial ][Express](English, Delhi Edition) and Jansatta [(Hindi, Delhi ][Edition). ][The]adverlisements shall be [published ][rninimum ][2l ][days ][in ][advance]before the scheduled [date ][of ][meeting.]notice of the afbresaid [proposed ][meeting ][in ][Financial ][Express](English, Delhi Edition) and Jansatta [(Hindi, Delhi ][Edition). ][The]adverlisements shall be [published ][rninimum ][2l ][days ][in ][advance]before the scheduled [date ][of ][meeting.]

t6.Individual notices of the [proposed meetings ][would be ][sent ][by]ordinary [post ][minimum ][21 ][days ][in ][advance ][before the ][scheduled]date of meeting. The [Chairpersoll ][will ][ensure ][that ][dispatch ][is]made under his/her supervision/ [or ][his ][authorized representative.']ordinary [post ][minimum ][21 ][days ][in ][advance ][before the ][scheduled]date of meeting. The [Chairpersoll ][will ][ensure ][that ][dispatch ][is]made under his/her supervision/ [or ][his ][authorized representative.']

17.The quorum for [the ][meeting ][of ][the ][Equity ][Shareholders ][of ][the]Applicant /Transferee [Company ][is ][fixed ][at ][5 ][persons ][personally]present as provided for in Article 64 of [the ][Articles ][of]As so ciation of [the ][App ][licant/Transferee ][C ][omp ][any.]Applicant /Transferee [Company ][is ][fixed ][at ][5 ][persons ][personally]present as provided for in Article 64 of [the ][Articles ][of]As so ciation of [the ][App ][licant/Transferee ][C ][omp ][any.]

18.It is also directed that if the Quorum [is ][not ][presetrt ][in ][the]meeting, the meeting rvould be adjourned for [30 ][minutes ][and the]in the [meeting ][would ][be ][treated ][as ][proper]meeting, the meeting rvould be adjourned for [30 ][minutes ][and the]in the [meeting ][would ][be ][treated ][as ][proper]persons present quorum. quorum.

=)_.---

19.Voting by proxy is [permitted, ][provided ][that the proxy ][in]the prescribed forrn [and ][duly ][signed ][by ][the ][person ][entitled ][tcr]attend and vote at the aforesaid [meeting ][or ][by his ][authotized]representative. is filed with the [Transferee Company ][at ][its]registered office, [not ][later than 48 hours before the said meeting.]the prescribed forrn [and ][duly ][signed ][by ][the ][person ][entitled ][tcr]attend and vote at the aforesaid [meeting ][or ][by his ][authotized]representative. is filed with the [Transferee Company ][at ][its]registered office, [not ][later than 48 hours before the said meeting.]

CO.A(M) No.134i2012

20.The Chairman/Alternate Chairman shall file their [reports ][within]2 weeks of the concltrsion of the said [rnecting.]2 weeks of the concltrsion of the said [rnecting.]

2t.fhere are nil secured creditors and Unsecured [Creditors ][(other]than trade creditols) in th.e Transt'eree [Conrpany, therefore ][the]requirement of couvening [meeting ]of [secured ][creditors ][and ][the]unsecured creditors [(other ]than trade creditors) [of ][the ][Transferee]Company does not arise.than trade creditols) in th.e Transt'eree [Conrpany, therefore ][the]requirement of couvening [meeting ]of [secured ][creditors ][and ][the]unsecured creditors [(other ]than trade creditors) [of ][the ][Transferee]Company does not arise.

22.'['here are 4195 trade creditois. as on June 30, 2012 of the'Transferee Conrp.anl'. 'uvhose. dues, the Transferee Cclmpanysirbmits rvill be discharged [in ][the ][ordinary ][course ][of ][busirress. ][The]Applicant/llransfleree Company has also [placed ][on ][record ][atr]affidavit dated September 5. 2012 stating that the payment periociof these trade cteditors [(as listecl ]out [in ][Annexure ][2/9) ][excluding]Honda Motor Co. Ltd ancl security [payatbles ][is wit"hin 40 ][rvorking]da1,s un,thave been paid off to the exterrl,of Rs. 18,62,04,74,452/-.As, ner Annexure to Annexure 1 [to ][the ][said ][Rifidavit, ][as ][on]August 31,2012.. the J-ransferee [company ][has iracle ][liabilities]amourrting to Its 17.12,12.23,38g exclucling an alltoLtlll of [Rs.]19,56,91.06,967 or,ved to L-Ionda i\Iot<-u' Co Ltd and amount ofstatutor-v dues, provisions for [expenses ][etc ][as ][indicated in ][notes ][to]the annexure read alongwith appendix I. ['l'he ][payrnent ][period ][fo;]such trade creditors, other tiren the orrrourt [payable ]to I{ondaMotor Co. Ltd and security Pa)'ables [(fbrmirrg ][part ][of ][trade]

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CO.A(M) No.134i2012

creditors) is within 40 working days. certificate of [the]Chartered Accountant has [also been ][filed ][alongwith ][the ][Affidavit.]Today the Applicant/Transferee Company [has ][placed on ][record]another affidavit of even date placing on record the [contract ]ofHonda Motors Co, I-td and the Transferee Company'and [also ][a]separate affidavit stating the trade [creditors ][to whom ][Rs.50,000 or]less is payable as on August 31, 2012, represent only [40Yo ][in]number and 0.07oh in value. In view of [the aforesaid ][submissions,]I consider it appropriate to convene [the ][meeting ][of ][the ][trade]creditors of more than Rs.50,0C0/- of the Transferee Company.Consequently, I direct that the rneeting of the trade creditors ofmore than Rs.50,000/- of the Transferee [Company ][(2134 ][in]nurnber) including Hero Motor Co. Ltd. be held on November [02,]2012 at 02.30 P.M at Air Force Auditorium. Subroto Park, Ner.vDelhi-110010.

23. Ms.Mahira Ali Soomar, Advocate, Cell No.9971II25I9 isappointed as the Chairperson and [Ms.Diksha ][Khurana,]Advocate, Cell No.[REDACTED] is appointed [as ][the ][Alternate]Chairperson fbr the meeting of the trade creditors of theApplicanVTransferee Company. They [would be paid ][a ][fee ][of]Rs.50,0001- each. Ms.Neelarn Thakurani, [Officer ][of ][this ][Court,]Cell No.886050I322 and Mr.Deepak Thapa, Official of thisCourt, Cell No.[REDACTED] shall lrrovide secretarial [assistance]

CO.A(M) No.134/2012

to the Chairperson and the Alternate Chairperson. They shall [be]paid fee of Rs.10,000/- each for this purpose.

24. The Transferee Company is also directed to [publish ][advance]notice of the aforesaid proposed meeting in Financial [Express](English, Delhi Edition) and Jansatta [(Hindi, ]Delhi Edition). [The]advertisements shall be published minimum 2I [days ]in [advance]before the scheduled date of rneeting.notice of the aforesaid proposed meeting in Financial [Express](English, Delhi Edition) and Jansatta [(Hindi, ]Delhi Edition). [The]advertisements shall be published minimum 2I [days ]in [advance]before the scheduled date of rneeting.

25. Individual notices of the [proposed meetings ][would ][be ][sent by]ordinary post minimum 2I days in [advance ]before [the ][scheduled]date ofmeeting. l'he Chairperson will ensure that dispatch [is]made under his/ her supervision/ or his [authorized representative.]ordinary post minimum 2I days in [advance ]before [the ][scheduled]date ofmeeting. l'he Chairperson will ensure that dispatch [is]made under his/ her supervision/ or his [authorized representative.]

26. The quorum for the meeting of the trade [creditors ]of [the]Applicant /Transferee Company is fixed at 5 [persons ][personally]present.Applicant /Transferee Company is fixed at 5 [persons ][personally]present.

27. It is also directed that if the Quorum is not [present ]in [the]meqting, the meeting would be adjourned for [30 ]minutes [and ][the]meqting, the meeting would be adjourned for [30 ]minutes [and ][the]persons present in the meeting would be [treated ][aS ][proper]quorum.quorum.

28. Voting by proxy is [permitted, ][provided ][that ][the ][proxy ][in]the prescribed form and duly signed by [the ][person entitled ][to]attend and vote at the aforesaid meeting or by his authorizedrepresentative, is filed with the Transferce Company at [its]registered office, not later than [48 hours before the said meeting.]the prescribed form and duly signed by [the ][person entitled ][to]attend and vote at the aforesaid meeting or by his authorizedrepresentative, is filed with the Transferce Company at [its]registered office, not later than [48 hours before the said meeting.]CO.A(M) No.134/2012Page 1 1 o1'12

29. The Chairman/Alternate Chairman shall [file ][their ][reports ][within]2 weeks of the conclusion of the said [rneeting.]2 weeks of the conclusion of the said [rneeting.]

30.The Application stand allowed [in ][the aforesaid terms.]

Dasti.

INDERMEET KAUR, J

SEPTEMBER 1O,2OI2nandan

CO.A(M) No.'13412012

T-o"r* THB I{IGH couRT oF DELHr AT NEw DELHI

I CO.APPL.(M) 13412012

IN THE MATTER OF

HERO INVESTMENTS PVT LTD [& ]ANR.

..... Appellant

Through Ms. Deeksha Khurana, [Adv. ][for ][the]applicant.

CORAM:

HON'BLII MS. JUSTTCE INDERMEET [KAUR]

ORDER18.09.2012

Co. Appl.177212012 in CO.APPL.(M\ [I34/20L2]

In vieu, of the averments made in the [application, ][the ][prayer ][rnade ][in]the application is allowed. Mr. Ishan Arora, [Advocate ][(Mobile ][No.][REDACTED]) is aecording appointed [as ][the ][Alternate ][Chairperson ][in ][place ][of]Ms. Deeksha l(hurana.

Copy of this order be given dasti. Intimation [also ][be ][sent ][to ][the]petitioner-Conrpany I

Application is disposed of.

INDERMEET KAUR, J

SEPTEMBEII I8.2OI2