IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO. 954 OF 2009 CONNECTED WITH COMPANY APPLICATION NO. 1090 OF 2009 H. & R. Johnson (India) Limited …. Petitioner Company/ Transferor Company No.1 WITH COMPANY PETITION NO. 955 OF 2009 CONNECTED WITH COMPANY APPLICATION NO. 1091 OF 2009 RMC Readymix (India) Private Limited …. Petitioner Company/ Transferor Company No.2 In the matter of Companies Act, 1956; And In the matter of Sections 391 to 394 and other applicable provisions of the Companies Act, 1956; And In the matter of Scheme of Amalgamation of H. & R. Johnson (India) Limited AND RMC Readymix (India) Private Limited WITH Prism Cement Limited. Dr. Veerendra Tulzapurkar, a/w Mr. Sandeep Parikh i/b M/s.Deven Dwarkadas & Partners, Advocate for the Petitioner. Ms. Mashuri Tavanandi i/b Mr. S. K. Mohapatra, for Regional Director in both Petitions 2 Mr. P. Ramarao, Official Liquidator in both Petitions CORAM: S.J. KATHAWALLA, J DATE: 22nd January, 2010 PC: 1. Heard learned Counsel for parties. 2. The sanction of the Court is sought under Sections 391 to 394 of the Companies Act, 1956, to a Scheme of Amalgamation of H. & R. Johnson (India) Limited, (the Transferor Company No. 1”) and RMC Readymix (India) Private Limited (“the Transferor Company No. 2”), with Prism Cement Limited (“The Transferee Company”). 3. The Counsel for the Petitioners submit that the registered office of Prism Cement Limited, The Transferee Company is situated in the State of Andhra Pradesh and that the Petition filed by the Transferee Company in the Andhra Pradesh High Court is Company Petition No.198 of 2009 is pending before the said Court. 4. Counsel appearing on behalf of the Petitioner has stated that they have complied with all the requirements as per directions of this Court and they have filed necessary affidavits of compliance in the court. Moreover, the Petitioner Company undertakes to comply with all statutory requirements, if any, as required under the Companies Act, 1956 and the Rules made thereunder. Undertaking is accepted. 5. The Regional Director has filed an Affidavit stating therein that save and except as stated in paragraphs 6 of the said Affidavit, the 3 Scheme does not appear to be prejudicial to the interest of the shareholders and the public. The paragraph 6 of the said Affidavit reads as under:- “That the Department further submits that, that the deponent is in receipt of Notice of Intention / Affidavit dated 07.12.2009 from the office of the Deputy Commissioner (CT), Zone VII, Chennai – 6, through Registrar of Companies, Mumbai vide his letter dated 16th December, 2009, which is annexed hereto and marked as Exhibit “D” collectively. In this connection the petitioner companies may be directed to clarify in respect of submission made by the Deputy Commissioner (CT), Zone VII, Chennai – 6 in this regard, before this Hon’ble High Court at the time of hearing.” 6. The Transferor Company No.2 has in their Affidavit dated 17th December, 2009 stated, inter alia, that as per the provisions of the Scheme, on the Scheme becoming effective the said deferral repayment, shall be the liability and responsibility of the Transferee Company and the said Creditor shall not be affected and the Transferee Company shall comply with all the procedure. 7. The letter mentioned in paragraph 5 hereinabove received from Deputy Commissioner (CT) Zone VII, Chennai - 6 also mentions in paragraph 1 to 4, certain conditions. The Transferor Company no. 2 have in its affidavit date 17th December, 2009 dealt with the same and stated that the deferred payment is to commence from 1st April, 2010 and as per the Deferral Agreement dated 9th May, 2001 the correct amount payable is Rs.453.96 lacs and not Rs.445.93 4 lacs. It is further stated that as per the provision of the Scheme upon the Scheme becoming effective all debts, liabilities, duties and obligations of every kind, nature and descriptions of the Transferor Companies are to be transferred to the Transferee Company so as to become the debts, liabilities, duties and obligations of the Transferee Company. In the circumstances, upon the Scheme becoming effective, the said deferral repayment shall be the liability and responsibility of the Transferee Company as the Transferor Company No.2 shall dissolve without winding up. The Transferee Company shall get the Revised Eligibility Certificate and comply with all the procedure. It is further stated in the affidavit that the said department holds second charge in the property of Transferor Company No. 2 and not first charge and the said mistake has been pointed out by the Transferor Company No. 2 by its letter dated 16th December, 2009. The second charge in favour of the Department will continue and will not be affected. 8. The Official Liquidator has filed a report in Company stating that the affairs of the Transferor Companies have been conducted in a proper manner and that the Transferor Companies may be ordered to be dissolved. 9. Both the Transferor Companies have, pursuant to notices issued by them to the Unsecured Creditors as per the Order of this Hon’ble Court, received some objections. However none of the objections are to the merits of the Scheme. The Transferor 5 Company No.2 has settled with the Unsecured Creditors who have sent the objections and has obtained their withdrawal letters. The Transferor Company No.2 filed an affidavit dated 17th December, 2009, pointing out the objection and withdrawal letters. The Transferor Company No.1 has received 7 objections from its Unsecured Creditors and 1 from its Fixed Deposit holder. Out of the said objections one Fixed Deposit Holder and 5 Unsecured Creditors have withdrawn their objections. Regarding the other two Unsecured Creditors the same are for recovery of amounts due, which in one case is disputed and in the other, the Transferor Company No.1 is willing to pay. None of the parties have filed any proceedings against the Transferor Company No.1. The Transferor Company No.1 has filed two Affidavit dated 17th December, 2009 and 13th January, 2010 bringing the said objections and withdrawal letters on record. 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. None of the parties concerned have come forward to oppose the Scheme. 11. Since all the requisite statutory compliances have been fulfilled, Company Petition No.954 of 2009 filed by the Transferor Company No.1 / Petitioner Company and Company Petition No.955 of 2009 filed by the Transferor Company No. 2 / Petitioner Company is made absolute in terms of prayer clauses (a) to (n) of the 6 respective Petitions. The Scheme is sanctioned subject to the order to be passed by the High Court of Andhra Pradesh. 12. The Transferor Company to lodge 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. 13. The Petitioner Companies in both Petitions to pay costs of Rs.7500/- each to the Regional Director, Western Region, Mumbai, and also to the Official Liquidator, High Court, Bombay, towards their costs. Costs to be paid within four weeks from today. 14. Filing and issuance of the drawn up order is dispensed with. 15. All concerned authorities to act on a copy of this order alongwith with the Scheme of Amalgamation duly authenticated by Company Registrar, High Court, Bombay. (S. J Kathawala, J)