1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO. 166 OF 2009 IN COMPANY APPLICATION NO. 64 of 2009 Gammon India Limited ....Petitioner v/s. ...... Mr. Hemant Sethi for the petitioner. Purnima Awasthi a/w. Gajendra Sinh Jadhavrao for U.O.I. Birendra Saraf a/w. Pranav Desai i/b. M.K. Ambalal & Co. for creditors. Sunil Patel i/b. Patel & Co. for Kamar spaces Pvt. Lotd.-objectionist. Bhadra Dalal one of (Ravi Builders) creditors. Deepak Joshi – objector. Himanshu Kode for mideast Pipeline products. CORAM:- A.M.KHANWILKAR, J DATED:- June 18, 2009. P.C. This Petition is under Sections 391 and 394 of the Companies Act, 1956 seeking sanction of this Court to the scheme of amalgamation whereby the business and undertaking of associated Transrail Structures Ltd. with all assets and liabilities stand transferred to and vest in or be deemed to be transferred and vested in Gammon India Ltd.- the Transferee company. This Petition is by the Transferee company. The Transferor company has 2 presented similar petition before the Ahmedabad High Court. It can be seen from the record that necessary procedure has been complied with by the Transferee company. 2. The Scheme is in relation to an arrangement only between the Transferee company and its shareholders. 100% shareholders have accorded their consent. It is stated that out of seven, four secured creditors have also accorded their consent in writing. Besides, substantial percentage of unsecured creditors have no objection to the proposed scheme. As a matter of fact the scheme is only between the Transferee company and its shareholders and would not affect the rights and liabilities of any secured creditors or the unsecured creditors. After the formalities were complied by the company, the proposal was considered by the Regional Director who in turn has also placed its no objection on record. It is noted in the affidavit of Regional Director that the scheme will not prejudice anyone and will be in the public interest. 3. However, in all 6 unsecured creditors have appeared before this Court. Out of them Larson & Tourbo Ltd. through Counsel submit that they are not opposing the scheme as propounded. The other five secured creditors namely M/s. Kamar Spares Pvt. Ltd., Mideast Guidelines and Rajpal Cargo, Shree Construction company and Ravi Builders are concerned, the only point raised by Counsel appearing for the said unsecured creditors is that they owe certain amount from the Transferee company. Counsel for the Petitioner company, however, points out that the claim of Rajgopal Cargo has already been settled and paid. He further submits that the undisputed claims of unsecured creditors have been settled by the Petitioner company. The claim of the other objectors (unsecured creditors) who are appearing before this Court through Counsel is 3 disputed by the company. It will be open to the said unsecured creditors to pursue legal remedy as may be advised for recovery of their claim amount. 4. Their claim even if put together, it is pointed out, may not exceed more than 1% of the total claim of the unsecured creditors. Besides, the Petitioner has invited my attention to the Balance-sheet of Petitioner company which reveals the total assets of Rs. 2558.95 crores as on 31st March, 2008 and corresponding liabilities are in the sum of Rs. 1491.07 crores. It is also stated on affidavit that the net assets are, therefore, in the sum of Rs. 1067.88 crores. As against this, as per the unaudited account as on 31st December, 2008, the corresponding liabilities are in the sum of Rs. 2290 crores and net assets are in the sum of Rs. 1294 crores. The Petitioner has also produced the Balance-sheet of Transferor company. The figures given in the said balance-sheet are at page 379. In the affidavit filed by the Petitioner the figures regarding the assets and liabilities even of the Transferor company are mentioned in Paragraph 5. It is stated that Transferor company as on 31st March, 2008 has total assets of Rs. 591.58 crores against corresponding liabilities in the sum of Rs. 366.43 crores. The net assets are in the sum of Rs.225.15 crores. 5. On examining the financial position of the respective companies, it is not a case as if the unsecured creditors who are appearing before this Court would be affected in any manner. No prejudice would be caused to them as the scheme of amalgamation propounded does not discharge the company from its liability to pay the unsecured creditors, subject to settlement of their claim in accordance with law. As there is no other opposition to the scheme and none of the Counsel appearing for the unsecured creditors is able to point out any specific provision in the scheme which according to them would prejudice any 4 of the unsecured creditors, their apprehension will have to be overruled being misplaced. In my opinion, therefore, the Scheme deserves to be accepted. 6. The Petition is made absolute in terms of prayer clause (a). 7. The Petitioner Companies to lodge a copy of this order and the Scheme with the concerned Superintendent of Stamps for the purpose of adjudication of stamp duty payable, if any, on the same within 30 days of obtaining the certified copy and/or an authenticated copy of the order. 8. The Petitioners in Company Petition No. 166/2009 to pay cost of Rs. 7500/- each to the Regional Director. Costs to be paid within four weeks from today. 9. Filing and issuance of the drawn up order is dispensed with. 10. All authorities concerned to act on a copy of this order alongwith Scheme duly authenticated by the Company Registrar, High Court, Bombay. (A.M.KHANWILKAR, J)