CONNECTED WITH COMPANY SUMMONS FOR DIRECTION v. COMPANY SCHEME PETITON NO 5

Mr. Hemant Sethi i/b Hemant Sethi & Co. Advocates for the Petitioners in both Petitions. Mrs. R.N. Sutar, Asstt. Official Liquidator in Company Scheme Petition Nos. 519 and 520 of 2011. Mrs. Purnima Awasthi i/b. Mr. H.P. Chaturvedi for Regional Director in both Petitions. CORAM: S. C. DHARMADHIKARI, J DATE: 21st OCTOBER 2011 P.C.:

Heard learned counsel for the parties. The sanction of the Court is sought under Sections 391 to 394 read with Section 78 and Sections 100 to 103 of the Companies Act, 1956 to the Composite Scheme of Arrangement between Tridhaatu Estates Private Limited and Amerigo Holdings & Investment Private Limited with S. H. Kelkar & Co. Private Limited and their respective shareholders.

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, Petitioners 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.

The Regional Director has filed an affidavit inter alia, stating therein that save and except as stated in paragraphs 6(a) and 6 (b), the scheme is not prejudicial to the interest of shareholders and public. In Paragraph 6 the Regional Director has stated that:. 3 (a) Clause 13 & 27 of the Scheme deals with change in Objects of 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 along with Form 21 with the Registrar of Companies. (b) Clause No. 11.5 & 25.6 of the Scheme states that the difference of the amount of net asset taken over by the transferee company and the value of consideration issued to the shareholders of the transferor companies shall be adjusted/credited to the General Reserves Account of the Transferee Company. In this connection it is submitted that the Reserve arising out of this scheme shall not be utilised for the purpose of declaring dividend by the Transferee Company in the future.

As far as paragraph 6 (a) of the Affidavit of the Regional Director is concerned, the Petitioner thorough their counsel undertakes that all compliances will be made as observed by the Regional Director in paragraphs 6(a) of the affidavit. The said undertakings are accepted.

As far as the objection in paragraph 6 (b) is concerned, the Petitioner through their counsel undertakes that the Reserve arising out of Scheme shall not be utilised for the purpose of declaring dividend. The said undertaking is accepted.

The Official Liquidator has filed his report in Company Scheme Petition No. 519 of 2011 and 520 of 2011 stating therein that the 4 affairs of the Transferor Companies have been conducted in a proper manner and that the Transferor Companies may be ordered to be dissolved.

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.

Since all the requisite statutory compliances have been fulfilled, the Company Scheme Petition No. 519 of 2011, Company Scheme Petition No. 520 of 2011 and Company Scheme Petition No. 521 of 2011 are made absolute in terms of prayer Clause (a) of the respective petitions.

The Petitioners 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 order.

The Petitioners in all the Petitions to pay costs of Rs.10, 000/- each to the Regional Director and Petitioner in Company Scheme Petition No. 519 of 2011 and 520 of 2011 to pay costs of Rs. 10,000/- to the Official Liquidator. Costs to be paid within four weeks from today.

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

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

(S. C. DHARMADHIKARI, J)