CONNECTED WITH COMPANY v. / Transferee Company. In the matter of the Companies Act

Mr. Akshay Vani, Advocate for the Petitioners in both Petitions. Mr. C.J. Joy i/b Dr. T C Kaushik for Regional Director in both Petitions. Mrs. R N Sutar, Asst. Official Liquidator, present in CSP Nos. 145 of

2012. 1 CORAM: S. J. Kathawalla, J. DATE: 7th September, 2012. PC:

1. Heard counsel for the parties.

2. The sanction of the Court is sought under Sections 391 to 394 of the Companies Act, 1956, to the Scheme of Amalgamation of ELDIAR INDIA PRIVATE LIMITED, the Transferor Company with DEPA INDIA PRIVATE LIMITED, the Transferee Company.

3. Counsel appearing on behalf of the Petitioners states that the Petitioner have complied with all requirements as per directions of this Court and they have filed necessary affidavits of compliance in the Court. Moreover, Petitioner Companies undertake to comply with all statutory requirements, if any, as required under the Companies Act, 1956 and the Rules made thereunder. The undertaking is accepted.

4. The Official Liquidator has filed his report in Company Scheme Petition No. 145 of 2012 stating that the affairs of the Transferor Company have been conducted in a proper manner and that the Transferor Company may be ordered to be dissolved.

5. The Regional Director has filed an Affidavit stating therein that save and except as stated in paragraphs 6(a) to 6(c) of the Affidavit, it appears that the scheme is not prejudicial to the interest of shareholders and public. In paragraphs 6(a) to 6(c) of the said Affidavit it stated that:- 2 “6. That the Deponent further submits that, (a) Clause 5 (c)(ii) of the scheme, provides that upon the scheme becoming effective, the Authorized Share Capital of the Transferee Company shall further stand increased by Rs. 7,00,00,000/-. In this connection the Transferee Company may be directed to comply with provisions of section 94/97 read with Schedule X of the Companies Act 1956, in respect of filing of necessary forms with the Registrar of Companies after payment of necessary filing fee and stamp duty as applicable on the said forms. (b) Clause 11(a) of the scheme deals with allotment of new shares by Transferee Company. Transferor Company is having foreign body corporate. Hence while giving effect to the scheme, by issuing shares by the Transferee Company to the Transferor Company, the petitioner companies may be directed to comply with FEMA/RBI regulations as applicable in this regard. (c) In clause 16(iii) of the scheme it is stated that the difference, if any, between the amount recorded as fresh share capital issued by the Transferee Company on amalgamation and the amount of share capital of the Transferor Company shall be reflected as General Reserve. In this connection it is submitted that the reserve arising out of the scheme shall be styled as “Capital Reserve” instead of General Reserve by the Transferee Company.

6. As far as the contents of paragraph 6(a) of the Affidavit of Regional Director is concerned, the Transferee Company through 3 its counsel undertakes to comply with Section 94/97 read with Schedule X of the Companies Act, 1956 in respect of filing of necessary forms with the Registrar of Companies after payment of necessary filing fee and stamp duty as applicable on the said forms. The said undertaking is accepted.

7. As far as the contents of paragraph 6(b) of the Affidavit of Regional Director is concerned, the Transferee Company through its counsel undertakes to comply with FEMA/RBI regulations as applicable in connection with the allotment of new shares to the shareholders of the Transferor Company by the Transferee Company. The said undertaking is accepted.

8. So far as contents of paragraph 6(c) of the Affidavit of the Regional Director are concerned, the Transferee Company through its counsel undertakes that the reserve arising out of the scheme shall be styled as “Capital Reserve” by the Transferee Company. The said undertaking is accepted.

9. From the material on record, the Scheme appears to be fair and reasonable and is not violative of any provisions of law and is not contrary to public policy. None of the parties concerned have come forward to oppose the Scheme.

10. Since all the requisite statutory compliances have been fulfilled, Company Scheme Petition Nos. 145 of 2012 is made absolute in terms of prayer Clauses (a) to (g) and Company Scheme Petition 146 of 2012 is made absolute in terms of prayer Clauses (a) to (g). 4

11. The Petitioner Companies to lodge a copy of this order and the Scheme duly authenticated by the Company Registrar, High Court, (O.S.) Bombay, with the concerned Superintendent of Stamps, for the purpose of adjudication of stamp duty payable, if any, on the same within 60 days from the date of the order.

12. Petitioner is directed to file a copy of this order alongwith a copy of the Scheme of Amalgamation with the concerned Registrar of Companies, electronically, along with E-Form 21, in addition to physical copy, within 30 days from the date of issuance of the order by the Registry

13. The Petitioner Companies in both the Petitions to pay costs of Rs. 10,000/- each to the Regional Director, Western Region, Mumbai and the Petitioner Company in the Company Scheme Petition No. 145 of 2012 to pay costs of Rs.10,000/- to the Official Liquidator, High Court, Bombay. Costs to be paid within four weeks from today.

14. Filing and issuance of the drawn up order is dispensed with.

15. All concerned authorities to act on a copy of this order along with the Scheme duly authenticated by the Company Registrar, High Court, Bombay. (S. J. Kathawalla, J.) 5