IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY SCHEME PETITION NO. 839 of 2009 CONNECTED WITH COMPANY APP. NO.1011 of 2009 Lupin Pharmacare Limited. … Petitioner/ Transferor Company No.2 WITH COMPANY SCHEME PETITON NO. 840 OF 2009 CONNECTED WITH COMPANY APP. NO. 1012 OF 2009 Lupin Herbal Limited … Petitioner / Transferor Company No. 3 IN THE MATTER of Scheme of Amalgamation of Novodigm Limited, Lupin Pharmacare Limited and Lupin Herbal Limited with Lupin Limited. Ms. Renuka Shetty i/b Crawford Bayley & Co. for the Petitioners Mr. N. R. Prajapati i/b Mr. S.K. Mohopatra for Regional Director. Mr. P. Ramarao, Official Liquidator present. CORAM: S. J. KATHAWALLA J. DATE: 8th January, 2010 2 PC: 1. Heard learned counsel for the Parties. 2. The sanction of this Court is sought under Section 391 to 394 of the Companies Act, 1956 to the Scheme of Amalgamation of Novodigm Limited, Lupin Pharmacare Limited and Lupin Herbal Limited with Lupin Limited. 3. The registered office of Novodigm Limited, the Transferor Company No.1 is situated at Vadodara in the State of Gujarat. The counsel appearing on behalf of the Petitioners state that the said Transferor Company has filed its petition for sanctioning the said Scheme in the High Court of Gujarat and the said petition is pending for final hearing. 4. Counsel appearing on behalf of the Petitioner Companies has stated that the Transferor Company No.1, the Transferor Company No.2 and the Transferor Company No.3 are the “Wholly Owned Subsidiaries” of the Transferee Company. The filing of a separate Petition by the Transferee Company is dispensed with, in view of submission made by the Counsel and the averments made in paragraphs 35 and 33 of Company Petition No. 839 of 2009 and Company Petition No. 840 of 2009, respectively. 5. Counsel appearing on behalf of the Petitioner Companies has stated that they have complied with all requirements as per directions of this Court and 3 they have filed necessary affidavits of compliance in the Court. Moreover, the Petitioner Companies undertake to comply with all the statutory requirements, if any, as required under the Companies Act, 1956 and the Rules made thereunder. Undertaking is accepted. 6. The Regional Director has filed an Affidavit stating therein that save and except as stated in paragraph 6, the Scheme does not appear to be prejudicial to the interest of shareholders and public. The paragraph 6 of the said Affidavit reads as under:- “That the Deponent further submits that, all the Transferor Companies are wholly owned subsidiary of the Transferee Company and the Transferee Company has not filed separate Company Petition before this Hon’ble High Court. The Transferee Company was inspected by the Ministry of Corporate Affairs under Section 209 A of the Act. The inspecting officer had pointed out various violations of the Companies Act in his report and the company had filed compounding applications which are pending consideration before the appropriate authorities. This being the material fact in context of the Transferee Company being a listed company are brought to the notice of this Hon’ble Court for the information, though the Transferee Company has not filed separate company petition before this Hon’ble High Court in respect of the present scheme of amalgamation.” 7. The Counsel for the Petitioners submits that the Transferee Company has already filed compounding applications which are pending consideration 4 before the appropriate authorities. She further submits that the above contraventions, if any, are technical in nature and does not affect the Scheme of Amalgamation and that the Transferee Company is otherwise compliant of the Statutory provisions of the Companies Act, 1956 and will comply with the relevant provisions of the Act. The said statement is accepted. She further submits that none of the alleged violations referred to by the Regional Director have any bearing whatsoever on the Scheme and hence, the said violations do not come in the way of the Scheme being sanctioned by the Court. She also states that it is always open to the Regional Director to adopt such proceedings in accordance with law with regard to the alleged violations against the Transferee Company, even after the Scheme is sanctioned by this Court and that the Transferee Company has no objections to liberty being reserved to the Regional Director subject to the Transferee Company’s right to defend such proceedings in accordance with law and that if any such proceedings are adopted against the Transferee Company, the same can be and may be continued against the Transferee Company pursuant to relevant provisions of the Act. 8. The Official Liquidator has filed a report in Company Petitions No. 839 & 840 of 2009 stating that the affairs of the Petitioner Companies have been conducted in a proper manner and that the Petitioner Companies may be ordered to be dissolved. 5 9. 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. 10. Since all the requisite statutory compliances have been fulfilled, Company Petition No. 839 of 2009 and Company Petition No. 840 of 2009 are made absolute in terms of prayer clauses (a) to (f) of the respective Petitions. The Scheme is sanctioned subject to the order to be passed by the High Court of Gujarat and subject to the liberty granted to the Regional Director/ Registrar of Companies as above to take the appropriate actions in accordance with law for the aforesaid violation in respect of the Transferee Company. 11. The Transferee Company to lodge a 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. 12. The Petitioners in both the Company Petitions to pay costs of Rs.7500/- each to the Regional Director, Western Region, Mumbai and also to the Official 6 Liquidator, High Court, Bombay. Costs to be paid within four weeks from today. 13. Filing and issuance of the drawn up order is dispensed with. 14. All authorities concerned to act on a copy of this Order alongwith Scheme duly authenticated by the Company Registrar, High Court, Bombay. (S. J. KATHAWALLA J.)