AND Kongsberg Process Simulation Private Limited v. SRD Engineering Private Limited and their respective
Case Details
Mr. Hemant Sethi i/b M/s. Hemant Sethi & Co., Advocates for the Petitioners in all Petition. Mrs. R.N. Suttar, Asst. Official Liquidator, present in Company Scheme Petition No. 321 of 2012 and 322 of 2012. Mr. Parag Vyas i/b Dr. T. C. Kaushik for Regional Director in all Petitions. 2 CORAM: S. J. KATHAWALLA, J DATE: 13th July, 2012 PC:
2. Heard learned counsels for the parties. The sanction of the Court is sought under Sections 391 to 394 read with Sections 100 to 103 of the Companies Act, 1956, to the Scheme of Arrangement between Kongsberg Maritime India Private Limited and Kongsberg Process Simulation Private Limited and SRD Engineering Private Limited and their respective Shareholders and Creditors.
3. Counsel appearing on behalf of the Petitioners has stated that the Petitioners 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 there under. The said undertaking is accepted.
4. The Regional Director has filed an Affidavit stating therein that save and except as stated in paragraph 6(a) to 6(c) of the said Affidavit, it appears that the Scheme is not prejudicial to the interest of shareholders and public. In paragraph 6(a) to 6(c) of the Affidavit, it is stated that: (a)“The shares of the petitioner companies are held by foreign body corporate. Hence while giving effect to the scheme, by issuing shares by the Transferee Company to the Transferor Companies, the Transferee Company may be directed to comply with FEMA/RBI regulations as applicable in this regard.” (b)”As per clause 13.1 of the scheme the name of the Transferee Company is proposed to be changed to “Kongsberg Maritime India Private Limited”. In this connection Transferee Company 3 may be directed to comply with the provisions of section 21/23 of the Companies Act 1956 in respect of filing of necessary forms with the Registrar of Companies and the proposed new name will be allowed subject to availability of the same, by the Registrar of Companies since under the computerized MCA 21 System of allotting the names, it is systemically not possible to the names. Therefore, the name if available at the time of filing of such application, shall be made available by the Registrar of Companies, Mumbai.” (c )”Clause 14.1 of the Scheme deals with change in Main Objects of the Memorandum of Association of the Transferee Company. In this connection, the Transferee Company may be directed to comply with provisions of section 40 read with section 18 of the Act and to file amended copy of Memorandum of Association alongwith Form No. 21 with the Registrar of Companies.”
5. As far as objection in paragraph 6(a) of the Affidavit of the Regional Director is concerned, the Petitioners through their Counsel undertake to comply with FEMA / RBI regulations as may be applicable while issuing shares by the Transferee Company to the shareholders of the Transferor Companies.. The said undertaking is accepted.
6. So far as the objection in paragraph 6(b) of the Affidavit of the Regional Director is concerned, the Petitioners through their Counsel undertake to comply with the provisions of section 21/23 of the Companies Act, 1956, with respect to filing of necessary forms with the Registrar of Companies and the proposed name shall be allowed subject to availability of the same at the time of filing such application before Registrar of Companies. The said undertaking is accepted.
7. So far as the objection in paragraph 6(c) of the Affidavit of the Regional Director is concerned, the Petitioners through their Counsel undertake to comply with the provisions of Section 40 read with Section 18 of the Companies Act, 1956, with respect to filing of relevant forms and payment 4 of fees and to file an amended copy of Memorandum of Association along with Form No.21 with the Registrar of Companies. The said undertaking is accepted.
8. The Official Liquidator has filed his report in Company Scheme Petition Nos. 321 of 2012 and 322 of 2012 stating therein that the affairs of the First Transferor Company and Second Transferor Company have been conducted in a proper manner and that the First Transferor Company and Second Transferor Company may be ordered to be dissolved.
9. The Counsel for the Petitioner/ Transferee Company states that they have received objection from M/s. Shapoorji Pallonji & Co. Ltd., one of the Unsecured Creditor that their dues have not been paid by the Petitioner/Transferee Company. The learned Counsel appearing for the Petitioner states that the Scheme does not affect the rights of Creditors as there is no compromise or arrangement with any of the creditors. It is further stated that the amount claimed by the objector is not due as of now as the work is not completed. It will be open to the said Unsecured Creditor to peruse legal remedy as may be advised for recovery of their dues. The Counsel for the Petitioner is correct in his submission. It will be open to Unsecured Creditor, M/s. Shapoorji Pallonji & Co. Ltd., to pursue their legal remedies against the Transferee Company. The Transferee Company shall abide by the orders of the Court passed if any, in favour of the Unsecured Creditor.
10. 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.
11. Since all the requisite statutory compliances have been fulfilled, Company Scheme Petition Nos. 321 of 2012 and 322 of 2012 filed by the First Transferor Company and the Second Transferor Company, respectively, are 5 made absolute in terms of prayer clause (a) and Company Scheme Petition No. 323 of 2012 filed by the Transferee Company, are made absolute in terms of prayer clauses (a) to (d).
12. Petitioners are directed to file a copy of this order along with a copy of the Scheme with the concerned Registrar of Companies, electronically, along with E-Form 21, in addition to the physical copy within 30 days from the date of issuance of the order by the Registry.
13. The Petitioner Companies to lodge a copy of this order and the Scheme, duly authenticated by the Company Registrar, High Court, 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.
14. The Petitioners in all the Company Scheme Petitions to pay costs of Rs. 10,000/- each to the Regional Director, Western Region, Mumbai and the Petitioners in the Company Scheme Petition Nos. 321 of 2012 and 322 of 2012 to pay costs of Rs.10,000/- each to the Official Liquidator, High Court, Bombay. Costs to be paid within four weeks from today.
15. Filing and issuance of the drawn up order is dispensed with.
16. All concerned authorities to act on a copy of this order along with the Scheme and the form of minutes duly authenticated by the Company Registrar, High Court, Bombay. (S. J. KATHAWALLA, J.)