INDIANA HOSPITAL AND HEART INSTITUTE LIMITED v. NIL

( By Sri. V.VINAY GIRI, ADV. FOR M/S KING & PARTRIDGE, ADV. ) ...PETITIONER AND : NIL ( By Sri. GIRISH KUMAR C.S, CGC FOR ROC) ...RESPONDENT THIS PETITION IS FILED UNDER SECTION 391 TO 394 OF THE COMPANIES ACT, 1956, PRAYING THAT THE SAID SCHEME OF ARRANGEMENT FOR THE AMALGAMATION OF THE TRANSFEROR COMPANY INTO THE PETITIONER BE SANCTIONED BY THIS HON'BLE COURT SO AS TO BE BINDING ON ALL EQUITY SHAREHOLDERS AND CREDITORS OF THE PETITIONER SO ALSO ON THE PETITIONER AND ALL OTHER CONCERNED AND ETC., THESE PETITIONS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING: 3 O R D E R These Company Petitions have been filed by the Petitioner-Companies under Sections 391 to 394 of Companies Act, 1956 seeking permission to sanction the Scheme of amalgamation with the Transferee Company, which is produced as Annexure-E to the petition. The Petitioner- Company in Company Petition No.171 of 2011, i.e. M/s. Indiana Hospital and Heart Institute Limited and the Petitioner in Company Petition No.170, i.e. M/s. Mangalore Indiana Hospital Limited (the petitioners in both the petitions are hereinafter referred to as “Transferor company”) are proposed to be merged with M/s. Mangalore Indiana Hospital Limited (hereinafter referred to as “Transferee-Company”).

2. The Transferor Company was incorporated on 7th August, 2006 under the provisions of Companies Act, 1956 with the Registrar of Companies, Karnataka at Bangalore under the name and style of “Alif Institute of Medical Sciences Private Limited ” and on 23rd July 2008, the name of the Transferor Company was changed to its present name i.e. “M/s. Indiana Hospital and Heart Institute Limited”. The Registered Office of the Transferor-Company is at Mahaveer 4 Circle, Kankanady PO, Mangalore – 575 002, Dakshina Kannada. The authorised share capital of the Transferor Company as on 31st March 2011 is Rs.8,50,00,000/- divided into 85,00,000 equity shares of Rs.10/- each and Rs.3,50,00,000/- worth Redeemable preference shares of Rs.100/- each. Issued, Subscribed and Paid-up Capital is Rs.8,42,74,500/- divided into 84,27,450 equity shares of Rs.10/- each and Rs.3,45,90,000/- worth Redeemable Preference Shares of Rs.100/- each.

3. The main objects of the Transferor-company, as set out in its Memorandum of Articles of Association, is to own, establish, run, manage and maintain, hospitals, super- specialty hospitals in various medical sciences including research centres, Diagnostic centres, blood bank service centers immunization centres, medical and other research centres, nursing home, health centres, rehabilitation centres, clinics, polyclinics, laboratories and to apply or provide utility articles and services to patients, attendants and others and to provide aids to medical personnel for research and development and to act and work as consultants in medical professions in India and abroad and etc. and morefully 5 described in Memorandum of Articles of Association, which is produced at Anenxure-A to the petition. The latest audited Balance Sheet of the Transferor Company, as on 31st March 2011, is produced at Annexure-B to the petition.

4. The Transferee-Company was incorporated under the provisions of Companies Act, 1956 with the Registrar of Companies, Karnataka at Bangalore on 1st February 2010 2004 the name and style of “Mangalore Indiana Hospital Limited”. The Registered Office of the Transferee Company is situated at No.16-7-432/434, Medicity, West Gate Terminus, Falnir Road, High Lands, Mangalore-575 002. The authorised share capital of the Transferee-Company as at 31st March 2011 is Rs.19,50,00,000/- divided into 1,95,00,000 equity share of Rs.10 each and Rs.50,00,000/- worth of 50,000 convertible preference shares of Rs.100/- each. The Issued, subsribed, and paid-up capital of the Transferee Company as on 31st March 2011 is Rs.18,70,80,000/- divided into 1,87,03,000 equity shares of Rs.10/- each and Rs.49,20,000/- worth of 49,200 preference shares of Rs.100/- each. The latest Balance Sheet of the Transferee-company is produced at Annexure-A in Company Petition No.170 of 2011. The main objects of the 6 Transferee Company is to own, establish, run, manage and maintain, hospitals, super-specialty hospitals in various medical sciences including research centres, Diagnostic centres, blood bank service centers immunization centres, medical and other research centres, nursing home, health centres, rehabilitation centres, clinics, polyclinics, laboratories and to apply or provide utility articles and services to patients, attendants and others and to provide aids to medical personnel for research and development and to act and work as consultants in medical professions in India and abroad and etc.

5. The Board of Directors of the Transferor Company and the Transferee-company have approved the scheme of amalgamation of Transferor and Transferee companies, at its meeting held on 23rd May 2011. The relevant Board Resolution is produced herewith as Annexure-F to the petition.

6. This Court, vide dated 22nd September 2011 in Company Applications No.957 of 2011 and 157 of 2011, dispensed with the holding of meetings of equity shareholders. 7

7. Thereafter, the present petitions have been filed. This Court, vide order dated 16th December 2011 issued notice to the Regional Director and Official Liquidator and permitted the Petitioners to take out advertisement in English Daily “The Hindu” and Kannada Daily “Kannada Prabha” on or before 3rd January 2012 indicating the date of hearing as 20th January 2012. Accordingly, the Petitioner has furnished the copy of advertisement taken out advertisement on 26th December 2011 in the English daily “The Hindu” and “Vijaya Karnataka” and filed a memo to that effect before this Court.

8. Pursuant to the notice issued to the Regional Director, the Registrar of Companies, Karnataka has filed affidavit dated 21st August 2012 on behalf of the Regional Director with the following observation: “......

4. I further submit that during the examination of the subject scheme, it is obser4ved that there is a clause of change of name of the Transferee Company under Clause 3.21 of the Scheme. In this regard, this Hon'ble Court may be pleased to direct the Transferee company to comply with provisions of Section 21 of the Companies Act, 1956 by filing 8 necessary documents for change of name of the Transferee company upon the scheme coming into feffect.

5. I further submit that similarly there is a clause under 3.20 of the scheme that the Transferor-company stand dissolved without winding up whereas there is no prayer in the petition filed by the Transferor company to take appropriate steps to include such relief for necessary orders of the Hon'ble High Court of Karnataka.

6. I further submit that during the scrutiny of Balance sheet as at 31.3.2010 and other connected documents of the Transferor Company, it was observed that the Transferor company has violated the certain provisions of Sec.67, 81(1A), 44, 97 and 94 of the Companies Act, 1956. In this regard, the Central Government submits that the company law violation shall be dealt with in accordance with Companies Act, 1956.”

9. The learned counsel for the petitioner placing reliance on the judgment in M/s. NOKIA SIEMENS NETWORK INDIA PRIVATE LIMITED passed in Company Petition No.34 of 2008 disposed of on 9th January 2009, contended that if a scheme by way of transfer of undertaking does not affect the rights of 9 the members of the creditors of the transferee-company as between themselves and the company or does not involve re- organisation of the share capital of the transferee-company, no application by the transferee-company under Sections 391 or 394 of the Companies Act, 1956 would be necessary. In view of the submission made by the learned counsel and also in the light of law declared by this Court, the observations made by the Regional Director, do not survive for consideration. Accordingly, service of Notice and the filing of separate petition by the Transferee Company, is not necessary and the same is dispensed with.

10. Upon the Scheme becoming effective, all employees of the Transferor Company in service on the effective date, shall be deemed to have become the employees of the Transferee company with effect from the appointed date, without any interruption in their service as a result of the transfer of the undertaking to the transferee company on the same and terms and conditions of employment, as were with the Transferor company. On the basis of the continuity of service, the terms and conditions of their employment with Transferee company shall not be less 10 favourable than those applicable to them with reference to the Transferor company on the effective date.

11. Pursuant to the advertisement of the petitioner, no shareholders, creditors and employees of the Transferee company have appeared and objected the proposed Scheme of Amalgamation. The Official Liquidator has filed the application. There is no objection for amalgamation as the Regional Director has also filed his affidavit with an observation that the Transferee Company has not filed any petition to that effect. Accordingly, as per Scheme Annexure- E, the Transferor company is permitted to be amalgamated with the Transferee company. Further, the Transferor company M/s. Indiana Hospital and Heart Institute Limited, is ordered to be dissolved.

12. Hence the following: O R D E R i. The Company Petition is allowed. ii. The Scheme of Amalgamation at Annexure-E to the petition is hereby sanctioned and the same shall be binding on the shareholders and creditors of the Petitioner 11 Company and also the Petitioner Company. iii. The Petitioner Company shall file copy of this order with the Registrar of Companies, Karnataka and Registrar of Companies and Registrar of Companies Maharashtra within thirty days from the date of receipt of copy of this order. Sd/- JUDGE 12 LNSJ:

08.11.2012 Order on “for being spoken to” in Company Petition No. 171 of 2011 c/w Company petition No.170 of 2011 These Company petitions were allowed on 13th September 2012 sanctioning the scheme of amalgamation. A memo is filed by the learned counsel for the petitioner seeking for some clarification in the order. It is stated in the memo that in sub-para iii on page 11 of the order the words “and Registrar of Companies Maharashtra” may be deleted as both the Transferor and Transferee companies have their Registered Office in the State of Karnataka. Accordingly, it is ordered. This Order is directed to be read into the main order. Sd/- JUDGE