THE HON’BLE Ms. JUSTICE G. ROHINI COMPANY PETITION Nos.8 and 9 of 2011 Dated: 21.03.2011 COMPANY PETITION No.8 of 2011 Between : M/s. GMK Labs Private Limited …… Petitioner/Transferee Company COMPANY PETITION No.9 of 2011 Between : M/s. Anvija Pharmaceuticals Private Limited …… Petitioner/Transferor Company The Court made the following:- THE HON’BLE Ms. JUSTICE G. ROHINI COMPANY PETITION Nos.8 and 9 of 2011 COMMON ORDER : These two petitions are filed under Sections 391 and 394 of the Companies Act, 1956 (for short, ‘the Act’) with a prayer to sanction the scheme of amalgamation of M/s. Anvija Pharmaceuticals Private Limited with M/s. GMK Labs Private Limited. The petitioner in Company Petition No.8 of 2011- M/s. GMK Labs Private Limited is the Transferee Company whereas the petitioner in Company Petition No.9 of 2011- M/s. Anvija Pharmaceuticals Private Limited is the Transferor Company. The Transferor Company was originally incorporated as a private limited company on 14.11.2003 in the State of Andhra Pradesh, Hyderabad vide certificate of incorporation No.01-42063 of 2003-04 under the name and style of ‘Anvija Pharmaceuticals Private Limited’. The registered office of the Transferor Company is situated at H.No.5- 80/A, Road No.11, Dilsukhnagar, Hyderabad- 500 060. The authorised share capital of the Transferor Company is Rs.1,50,00,000/- divided into 1,50,000 equity shares of Rs.100/- each. The issued, subscribed and paid-up share capital of the Transferor Company is Rs.1,28,51,500/- consisting of 1,28,515 equity shares of Rs.100/- each. The objects for which the Transferor Company was incorporated as set out in its memorandum of association have been enumerated in Para No.5 of Company Petition No.9 of 2011. The Transferee Company was originally incorporated as ‘GMK Labs Private Limited’, with the Registrar of Companies, Andhra Pradesh vide certificate of incorporation No.01-51554 on 07.11.2006. The registered office of the Transferee Company is situated at H.No.37-118/19, Plot No.18, Sree Colony, Neredmet, ‘X’ Road, R.K.Puram Post, Secunderabad- 500 056. The authorised share capital of the Transferee Company is Rs.3,00,00,000/- divided into 30,00,000 equity shares of Rs.10/- each. The issued, subscribed and paid-up capital of the Transferee Company, as on date, is Rs.1,66,07,070/- divided into 16,60,707 equity shares of Rs.10/- each. The objects for which the Transferee Company was incorporated as set out in its memorandum of association have been enumerated in Para No.5 of Company Petition No.8 of 2011. The audited balance sheets of both the transferor company and transferee company as on 31.03.2010 have been filed along with the company petitions. It is stated that the Transferee Company has been incorporated by the promoters of Transferee Company for the manufacture, import and export and deal in all kinds of chemicals either inorganic or organic and all kinds of Drugs etc. It is further stated that the Transferee Company has been well known for marketing of granules, formulations and Active Pharmaceutical Ingredients (APIs) by using Bulk Drugs and its carrying on the job works for various formulation companies over the years, it has established it name in marketing of pharma chemical and products whereas the Transferor Company was incorporated with main objects for carrying on the business of Trade, Export, Import, Marketing of Bio Chemical, fine and heavy organic and inorganic chemicals, vitamins etc. It is also stated that the Transferor Company has been incorporated by the promoters of Transferor Company for the manufacture, import and export and deal in all kinds of chemicals either inorganic or organic and all kinds of Drugs etc. It is further stated that the Transferor accompany has set up its unit at survey No.210, Dothigudem Village, Pochampally Mandal, Nalgonda District, Andhra Pradesh for manufacture of granules, formulations and Active Pharmaceutical Ingredients (APIs) by using Bulk Drugs and its carrying on the job works for various formulation companies over the years, it has established its name in Formulations. It is stated that the amalgamation would result in better and efficient utilization of resources of the Transferor Company and the Transferee Company resulting in synergy of operations and economies of scale. By amalgamating both the companies, the products manufactured by the Transferee Company and the Transferor Company can be brought under one brand i.e., into Transferee Company, which would also in-turn increase the market share and the product portfolio of the Transferee Company. The Transferee Company will derive and avail the benefits of assets, reserves and cash flows of the Transferor Company thereby increasing its financial strength and the ability to make larger investments. The proposed amalgamation shall result in better administrative and managerial control for the management, as the merger of the two companies would ensure synergy in operation and management. The proposed Amalgamation in general will have beneficial results for the companies, its members, employees and all concerned. In view of the advantages of the amalgamation, the Board of Directors of both the Transferor and Transferee Companies at their respective meetings held on 30.08.2010 approved the scheme of amalgamation of the Transferor Company with the Transferee Company with effect from 1st April, 2010, subject to the approval/consent of the shareholders of the Transferor Company and the confirmation by this Court. While placing a copy of the proposed Scheme of Amalgamation, these two applications have been filed for sanction of the said scheme. It is pleaded by the Transferor Company that it had availed secured loans from Andhra Pradesh State Financial Corporation towards the term loans requirements. The Transferor Company has also availed unsecured loans from its Holding Company and others. The Transferor Company had approached the secured and unsecured creditors for their no objection for the proposed scheme of amalgamation from the said creditors and that it is an unlisted company. So far as the Transferee Company is concerned, it is stated that it had not availed secured loans, but it had availed unsecured loans. It is also stated that the Transferee Company is an un listed company. It is explained that so far as the shareholders of the Transferor and Transferee Companies are concerned, by orders dated 23.11.2010 made in Company Application Nos.1080 and 1081 of 2010, this Court had dispensed with the convening of the meeting of the shareholders of the Transferor and Transferee Companies as all the shareholders had given their no objection by means of affidavits. I have heard the learned counsel for the petitioners and perused the material available on record. By order dated 11.02.2011 this Court directed notice to the Regional Director, Ministry of Corporate Affairs, Chennai; the Registrar of Companies, Andhra Pradesh at Hyderabad and the Official Liquidator, High Court of Andhra Pradesh. Pursuant thereto, the Official Liquidator filed a report dated 04.03.2011 stating that the affairs of the Transferor Company appear to have not been conducted in a manner prejudicial to the interest of the members or to public interest. In the common affidavit filed by the Registrar of Companies dated 12.03.2011, the following objections have been raised: “a) The Transferor and the Transferee Companies have to submit before the Hon’ble High Court “NOCs” obtained from the creditors. b) The Transferee Company should pay the Stamp duty wherever applicable as per the Regulations of Andhra Pradesh Stamp Act.” So far as the objection ‘a’ is concerned, it is explained by the learned counsel for the petitioners that the unsecured creditors of the petitioner companies have already given their express consent for the scheme of amalgamation vide their affidavits dated 21.10.2010, which were filed in Company Application Nos.1080 and 1081 of 2010. At any rate, in view of the objection taken by the Registrar of Companies, the Managing Director of the petitioner companies gave affidavit dated 16.03.2011 stating that the unsecured creditors have been repaid their loan accounts and as on today there are no unsecured creditors or loans in the petitioner companies. A copy of the Bank statement of the petitioner companies duly attested by the official has also been placed before this Court to substantiate the said plea. That apart, the Transferor Company has also filed the affidavit of Mr. K.Jagadeeshwar Reddy, the only unsecured creditor expressing his consent to the scheme of amalgamation. The secured creditor M/s. A.P.State Financial Corporation has also given its consent to the scheme of amalgamation and its no objection certificate has also been filed along with the memo vide USR No.497 of 2011. With regard to the stamp duty is concerned, it is clear that as per clause 20(d) of Schedule I-A of the Indian Stamp Act, the Transferee Company is not liable to pay any stamp duty. Hence, the objections are overruled. Having regard to the facts and circumstances noticed above and taking into consideration the fact that the scheme of amalgamation is not opposed to any provision of law or public interest, and despite notice of the admission of the company petitions by paper publication, no objection whatsoever have been received from any quarter, I am of the opinion that it is a fit case for granting sanction of the scheme of amalgamation as sought by the petitioners. Accordingly, both the Company Petitions are allowed and the scheme of amalgamation is approved. A copy of this order shall be filed before the Registrar of Companies within 30 days from the date of receipt of this order. No costs. __________ G. ROHINI, J Date: 21.03.2011 Ivd