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Iyogi Technical Services Pvt. Ltd Vs.- - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
AppellantIyogi Technical Services Pvt. Ltd
Respondent-
Excerpt:
.....company and in view of the order dated 07.10.2016 passed by a division bench of this court in company application no.19/2016 titled as vistas residents association v. namit malhotra & ors., and in light of the observations of the court in krishna texport industries limited v. dcm limited (supra), the petitioners in abovementioned company petitions nos. 899/2016 and 696/2016, are granted liberty to voice their concerns and put forth their objections, if any, in relation to co.appl.(m) 135/2016 page 9 of 10 the scheme propounded on behalf of the applicant company, at the proposed meetings of the stakeholders.36. it is trite to state that the right of the petitioners/ non-applicants in the abovementioned company petitions shall remain fully intact to raise all objections to the.....
Judgment:

$~ * + IN THE HIGH COURT OF DELHI AT NEW DELHI CO.APPL. (M) 135/2016 IN THE MATTER OF: iYOGI Technical Services Pvt. Ltd Applicant Company Through: Mr P.Nagesh, Mr Manish Kumar and Mr Nakul Jain, Advocates for Applicant. Mr Jai Sahai Endlaw, Advocate for Non- Applicant. Mr Hemant Phalpher , Mr Vanshdeep Dalmia and Mr Parth Goswami, Advocates for Non-Applicant. CORAM: HON’BLE MR JUSTICE SIDDHARTH MRIDUL ORDER

2510.2016 C.A. No.3676 of 2016 (Exemption) All exemptions granted, subject to just exceptions. Application stands disposed of. CO.APPL. (M) 135/2016 1. The present is a first motion application filed under Sections 391-394 of the Companies Act, 1956 (hereinafter referred as as ‘Act’), read with Rules 6 & 9 of the Companies (Court) Rules, 1959 by iYOGI Technical Services Private Limited (hereinafter referred to as ‘applicant company’), in connection with the proposed Scheme of Arrangement (hereinafter referred to as ‘Scheme’) between the Applicant Company and its creditors. CO.APPL.(M) 135/2016 Page 1 of 10 2. The registered office of the applicant company is situated at New Delhi, within the jurisdiction of this Court.

3. The applicant company was incorporated under the Companies Act, 1956 on 28th February, 2007 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi.

4. The Applicant Company is a wholly owned subsidiary of iYOGI Limited, Mauritius (Holding Company).

5. The present authorized share capital of the applicant company is Rs.1,50,00,000/-, divided into 15,00,000 equity shares of Rs.10/- each. The issued, subscribed and paid-up share capital of the company is Rs.1,44,89,030/-, divided into 14,48,903 equity shares of Rs.10/- each.

6. Copy of the Memorandum of Association and Articles of Association of the applicant company has been filed and the same are on record. The audited balance sheets, as on 31st March, 2015, of the applicant company, along with the reports of the auditors, has also been filed and the same are on record.

7. A copy of the Scheme of Arrangement has been placed on record and the salient features of the Scheme have been incorporated and detailed in the application and the accompanying affidavit. It has been submitted by the applicant that the proposed Scheme would help the Applicant Company in re- habilitating/restructuring its business and generating the cash-flow required to settle with its Creditors, as defined under the proposed Scheme.

8. It has been submitted on behalf of the Applicant Company that no proceedings under Sections 235 to 251 of the Act are pending against the Applicant Company.

9. The Board of Directors of the Applicant company, in their meeting of Board of Directors held on 29th August, 2016 have unanimously approved the proposed Scheme of Arrangement. Copy of the Resolution passed at the CO.APPL.(M) 135/2016 Page 2 of 10 meeting of the Board of Directors of the Applicant company has been placed on record.

10. A prayer has been sought seeking directions of this Court to dispense with the requirement of convening meetings of their equity shareholders.

11. The applicant company has 02 Equity Shareholders. Both the equity shareholders have given their consents/no objections in writing to the proposed Scheme. Their consents/no objections have been placed on record. They have been examined and found in order. In view thereof, the requirement of convening the meeting of the equity shareholders of the applicant company to consider and, if thought fit, approve, with or without modification, the proposed Scheme, is dispensed with.

12. The applicant company has 02 secured creditors and a direction is sought to convene and hold their meetings to seek their approval to the proposed Scheme.

13. Considering the facts and circumstances as aforesaid and in the light of the proposed Scheme, the meeting of the secured creditors of the applicant company shall be held on Monday, the 26th December, 2016 at 3.00 p.m. at Lemon Tree Premier Hotel, 48-52, Leisure Valley, Gurgaon. The necessary details qua the meeting to be held are elaborated as follows: i. Mr. Bhagwan Swarup Shukla, Advocate, (Mobile No.9910483635) is appointed as the Chairperson and Ms. Sanya Talwar, Advocate, (Mobile No.9643467571) is appointed as the Alternate Chairperson to conduct the said meeting. ii. The Quorum of the meeting of the secured creditors of the applicant company shall be 50% in number and more than 50% in value of the total secured debt.

14. The applicant company has 02 statutory creditors and a direction is CO.APPL.(M) 135/2016 Page 3 of 10 sought to convene and hold their meetings to seek their approval to the proposed Scheme.

15. Considering the facts and circumstances as aforesaid, meeting of the statutory creditors of the applicant company shall be held on Monday, the 26th December, 2016 at 4:00 p.m. at Lemon Tree Premier Hotel, 48-52, Leisure Valley, Gurgaon. The necessary details qua the meeting to be held are elaborated as follows: i. Mr. Jaideep Tandon, Advocate, (Mobile No.9810070237) is appointed as the Chairperson and Mr. Yogendra Misra, Advocate, (Mobile No.9971794595) is appointed as the Alternate Chairperson to conduct the said meeting. ii. The Quorum of the meeting of the secured creditors of the applicant company shall be 50% in number and more than 50% in value of the total secured debt.

16. The applicant company has 232 unsecured creditors and a direction is sought to convene and hold their meetings to seek their approval to the proposed Scheme.

17. Considering the facts and circumstances as aforesaid, meeting of the unsecured creditors of the applicant company shall be held on Monday, the 26th December, 2016 10:00 a.m. at Lemon Tree Premier Hotel, 48-52, Leisure Valley, Gurgaon. The necessary details qua the meeting to be held are elaborated as follows: i. Mr. Dheeraj Gupta, Advocate, (Mobile No.9999196424) is appointed as the Chairperson and Ms. Hrishika Pandit, Advocate, (Mobile No.9999661683) is appointed as the Alternate Chairperson to conduct the said meeting. ii. The Quorum of the meeting of the un-secured creditors of the CO.APPL.(M) 135/2016 Page 4 of 10 applicant company shall be 50% in number and more than 50% in value of the total unsecured debt.

18. The applicant company has 2265 employees and a direction is sought to convene and hold their meetings to seek their approval to the proposed Scheme.

19. Considering the facts and circumstances aforesaid, meeting of the employees of the applicant company shall be held on Tuesday, the 27th December, 2016 at 10:00 a.m. at Lemon Tree Premier Hotel, 48-52, Leisure Valley, Gurgaon. The necessary details qua the meeting to be held are elaborated as follows: i. Mr. Ghanshyam Thakur, Advocate, (Mobile No.9968596805) is appointed as the Chairperson and Mr. Siddharth Thakur, Advocate, (Mobile No.9650032198) is appointed as the Alternate Chairperson to conduct the said meeting. ii. The Quorum of the meeting of the employees of the applicant company shall be 50% in number and more than 50% in value of the total number of employees.

20. In case the quorum as noted above for the above meetings is not present at the meetings, then the meetings shall be adjourned by half an hour, and thereafter, the person(s) present and voting shall be deemed to constitute the quorum. For the purpose of computing the quorum, the valid proxies received by the Applicant Company shall also be considered, if the proxy in the prescribed form duly signed by the person entitled to attend and vote at the respective meetings is filed at the registered office of the Applicant Company at least 48 (forty eight) hours before the meeting. The Chairpersons and Alternate Chairpersons shall ensure that the proxy registers are properly maintained.

21. The Chairpersons and Alternate Chairpersons shall ensure that notices for convening the aforesaid meetings, along with copies of the proposed Scheme CO.APPL.(M) 135/2016 Page 5 of 10 and the statement under Section 393 of the Act along with the proxy form, shall be sent to the creditors of the Applicant Company by speed post at their registered or last known addresses at least 21 (twenty one) days before the date appointed for the respective meetings, in their presence or in the presence of their authorized representatives.

22. Notice of the meetings shall also be published in Delhi editions of the newspapers, namely ‘Statesman’ (English) and ‘Veer Arjun’ (Hindi) in terms of the Companies (Court) Rules, 1959, at least 21 (twenty one) days before the date appointed for the respective meetings.

23. The Chairpersons and Alternate Chairpersons will be at liberty to issue suitable directions to the management of Applicant Company in order to ensure that the aforesaid respective meetings are conducted in a just, free and fair manner.

24. The fee of the Chairpersons and the Alternate Chairpersons for the aforesaid respective meetings shall be Rs.75,000/- each, in addition to meeting their incidental expenses, to be borne by the Applicant Company. The Chairpersons shall file their reports within 2 (two) weeks from the date of holding of the aforesaid respective meetings.

25. The application stands allowed in the aforesaid terms and is disposed of accordingly. C.A. No.3677 of 2016 (For directions and stay) 26. The present application has been filed under sections 391-394 of the Companies Act, 1956 read with Rules 6 and 9 of the Company (Courts) Rules, 1959 seeking the following prayers: “a) pass an ex-parte order directing that the creditors, whose names are mentioned in Annexures K and M, not take any coercive the Applicant Company action against CO.APPL.(M) 135/2016 Page 6 of 10 the pendency of during the present application and till such time convening of the meeting for the revival of the Company is held and the scheme as proposed is approved and implemented; pass such other and further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of this case.” b) 27. Learned counsel appearing on behalf of the Applicant Company would invite my attention to section 391(6) of the Act and pray that stay of proceedings, if any, instituted against the Applicant Company or that may be initiated against the company in the future, be granted.

28. It has been submitted on behalf of the Applicant Company, that Company Petitions being Company Petition Nos. 899/2016 and 696/2016 have been filed against the Applicant Company seeking Winding Up of the Applicant Company, before this Court. Apart from the abovesaid proceedings, Suit No.558 of 2016 under Order XXXVII Rule 2 CPC, is also pending before the Additional District Judge, Patiala House Courts, Delhi.

29. Learned counsel appearing on behalf of the Applicant Company would further state that apart from the proceedings as abovementioned, there may be other proceedings pending against the Applicant Company or which may be instituted against the Applicant Company in the future, of which they do not have knowledge at this juncture.

30. Learned counsel would further submit that winding up of the Applicant Company would not be in the best interests of any of the parties in the present matter and it is imperative that the Applicant Company be protected from the consequences of the pending and future litigations so as to enable the propounders of the Scheme to rehabilitate/restructure the company in order to CO.APPL.(M) 135/2016 Page 7 of 10 generate the requisite cash flows to settle the dues of the Applicant Company with its Creditors. Learned counsel further submits that the collective energies of the Applicant Company will get diverted if the winding up proceedings initiated by the creditors are not put in abeyance.

31. To support the averments made on behalf of the Applicant Company hereinabove, reliance would be placed on the decision rendered by a Division Bench of this Court in Krishna Texport Industries Limited v. DCM Limited reported as (2008) 144 Comp. Cases 113 (Delhi), to urge that if winding up proceedings are pending against a company, the same can be put in abeyance for the time being to give some time to the company to come up with a scheme of settlement to clear its liabilities.

32. Learned Counsel would further draw the attention of this Court to a decision of a Division Bench of this Court, in Vistas Residents Association v. Namit Malhotra & Ors., in CO. APP. 19/2016, Seema Chouhan Bhatia & Ors. v. Namit Malhotra & Ors., in CO. APP. 20/2016 and The Residences Unitech Buyer Association v. Namit Malhotra & Ors., in CO.APP. 21/2016, to urge that said appeals were disposed of by a common judgment & order dated 07th October 2016 holding, inter-alia, that there was no infirmity in the order impugned therein, whereby it was directed that meeting of home buyers in different cities be convened while also staying all civil proceedings, pending as well as those which may be instituted in the future against the company.

33. It would relevant at this juncture to extract the provisions of Section 391(6) of the Act: “391. Power to compromise or make arrangements with creditors and members. (1) Where a compromise or arrangement is proposed- (a) between a company and its creditors or any class of them; or CO.APPL.(M) 135/2016 Page 8 of 10 (b) between a company and its members or any class of them; the Court may, on the application of the company or of any creditor or member of the company, or, in the case of a company, which is being wound up, of the liquidator, order a meeting of the creditors or class of creditors, or of the members or class of members, as the case may be, to be called, held and conducted in such manner as the Court directs. ****** (6) The Court may, at any time after an application has been made to it under this section, stay the commencement or continuation of any suit or proceeding against the company on such terms as the Court thinks fit, until the application is finally disposed of.” 34. A bare reading of the provisions under section 391(6) reveals that it enables the Court to stay suits and proceedings against the company, pending in the same Court or elsewhere, till such time that the proceedings for the sanction of the Court, for the proposed Scheme by the Applicant Company, is disposed of.

35. After hearing learned counsel appearing on behalf of the petitioners/non- applicants in winding up petitions being Co. Pet. 899/2016 and Co. Pet. 696/2016 instituted against the applicant company and in view of the order dated 07.10.2016 passed by a Division Bench of this Court in Company Application No.19/2016 titled as Vistas Residents Association v. Namit Malhotra & Ors., and in light of the observations of the Court in Krishna Texport Industries Limited v. DCM Limited (supra), the petitioners in abovementioned company petitions Nos. 899/2016 and 696/2016, are granted liberty to voice their concerns and put forth their objections, if any, in relation to CO.APPL.(M) 135/2016 Page 9 of 10 the Scheme propounded on behalf of the applicant company, at the proposed meetings of the stakeholders.

36. It is trite to state that the right of the petitioners/ non-applicants in the abovementioned company petitions shall remain fully intact to raise all objections to the proposed Scheme at the stage when the petition for second motion is instituted on behalf of the applicant company.

37. It is made clear that this protection being granted to the applicant company is with the sole object of affording them a reasonable opportunity, as requested by them, to rehabilitate/restructure the company in order to generate the requisite cash flows to settle the dues of the Applicant Company with its Creditors.

38. In view of the foregoing, the aforementioned proceedings against the applicant company, in Co. Pet. 899/2016 and Co. Pet. 696/2016, pending before this Court and in Suit No.558 of 2016 under Order XXXVII Rule 2 CPC, pending before the Additional District Judge, Patiala House Courts, Delhi, shall be kept in abeyance till further orders.

39. The application is disposed of. OCTOBER25 2016 r/mk SIDDHARTH MRIDUL, J CO.APPL.(M) 135/2016 Page 10 of 10


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