1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO 935 OF 2007 CONNECTED WITH COMPANY APPLICATION NO 1153 OF 2007 In the matter of the Companies Act, 1956 (1 of 1956); AND In the matter of Sections 391 to 394 of the Companies Act, 1956; AND In the matter of Scheme of Amalgamation of Kirtilal Kalidas Diamonds Exports Private Limited and Kirtilal Kalidas Ornaments Exports Private Limited and Kirti Ornaments Private Limited and Dimexon Exports Private Limited and NK Polishers with Dimexon Diamonds Limited Dimexon Exports Private Limited. .... 4th Transferor Company AND COMPANY PETITION NO 936 OF 2007 CONNECTED WITH COMPANY APPLICATION NO 1152 OF 2007 Kirti Ornaments Private Limited. …. 3rd Transferor Company AND COMPANY PETITION NO 937 OF 2007 CONNECTED WITH COMPANY APPLICATION NO 1154 OF 2007 NK Polishers. …. 5th Transferor Company/firm AND COMPANY PETITION NO 938 OF 2007 CONNECTED WITH 2 COMPANY APPLICATION NO 1155 OF 2007 Dimexon Diamonds Limited….Transferee Company Hemant Sethi i/b Hemant Sethi & Co. advocates for Petitioners Mr. S. Ramakantha Dy. OL in C.P No. 935 & 936 of 2007 Mr. C. J. Joy and Ms. Anamika Malhotra i/by S.K Mohapatra for the Regional Director in all 4 petitions . CORAM :A.M KHANWILKAR.J DATE: 29th FEBRUARY 2008 P.C Heard learned counsel for parties. 1. The sanction of the Court is sought under Section 391 to 394 of the Companies Act, 1956 to a Scheme of Amalgamation of Kirtilal Kalidas Diamonds Exports Private Limited and Kirtilal Kalidas Ornaments Exports Private Limited and Kirti Ornaments Private Limited and Dimexon Exports Private Limited and NK Polishers (Transferor Companies) with Dimexon Diamonds Limited, the transferee Company and their Respective Shareholders/partners . 2. Counsel appearing on behalf of the Petitioners have stated that they have complied with all the requirements as per directions of this Hon’ble Court 3. The only contention raised by the Regional Director in his affidavit in reply is that the Petitioner Company may be directed to furnish an undertaking as regards compliance with Accounting Standard 14 issued by the Institute of Chartered Accountants of India. It is further stated that save as aforesaid the Scheme is not prejudicial to the interest of Creditors and Shareholders and public. 4. The Counsel appearing for the Petitioner undertakes that necessary compliance of Accounting Standard 14 issued by the Institute of Chartered Accountants of India would be made and the said undertaking is accepted. 5. The Official Liquidator has filed report in Company Petition No 935 & 936 of 2007 stating that the affairs of Dimexon Exports Private Limited, the 4th Transferor Company & 3 Kirti Ornaments Private Limited, the 3rd Transferor Company have been conducted in a proper manner. 6. Mr. Sethi, the learned counsel appearing for the Petitioners further states that 5th Transferor Company i.e. Ms. N.K Polishers is an partnership firm being an unregistered Company within the meaning of 582(b) of the Companies Act, 1956 and was registered on 04th August 1998 as partnership firm and in consequence thereof certificate of registration was issued by the Registrar of Firms, Mumbai. It is further stated that definition of partnership firm under the Companies act, 1956 is defined in Section 582(b) which envisage that an unregistered company shall include any partnership, association or company consisting of more than seven members at the time when the petition for winding up the partnership, association or company, as the case may be, be presented before the Tribunal. In the instant case, the Petitioner firm has 8 partners who have consented to the proposed Scheme of Amalgamation. The Scheme was also approved at a Partners’ Meeting held on 10th October 2007 and individual consent letters of all the partners is annexed to the affidavit in support filed of Company Application filed on behalf of N K Polishers. 7. It is further stated that under chapter V, Section 390 (sections 391 and 393) --- (a) defines the expression ‘company’ means any company liable to be wound up under this Act. In terms of aforesaid provisions, the Petitioner firm/Company has filed Application/Petition for merger of Petitioner firm/Company with the Transferee Company and Transferor Company No.5 i.e. Ms. N.K Polishers can accordingly be merged with the transferee company under the provisions of Sections 391 to 394 of the Companies Act, 1956. 8. Mr. Sethi, the learned counsel for the Petitioners further states that in so far as Transferor Company No. 1 & 2 namely Kirtilal Kalidas Diamonds Exports Private Limited and Kirtilal Kalidas Ornaments Exports Private Limited, the Petitions were filed before the Madras High Court and vide order dated 15th February 2008 the Scheme has been 4 sanctioned. 9. Upon perusal of the entire 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 any 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 Nos.935 to 938 of 2007 are made absolute in terms of prayer clause (a). The Transferor Company No.5 shall accordingly stand dissolved and shall be succeeded by the Transferee Company. The Registrar of firms, Maharashtra State, Mumbai shall transfer all documents relating to the Transferor Company No.5 to the Registrar of Companies, Mumbai who shall thereafter register with him on the file maintain by him in relation to the Transferee Company and consolidate the files of the Transferor Company No.5 accordingly. 11. The Transferee Company to lodge 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 authenticated and/or certified copy of this Order. 12. The Petitioners in all the Company Petitions to pay cost of Rs. 5000/- each to the Regional Director. Petitioner in Company Petition No. 935 & 936 of 2007 to pay to the Official Liquidator, High Court, Bombay sum of Rs. 5000/-. Costs to be paid within four weeks from today. Petitioner to comply with all statutory compliances, applicable, if any. 13. Filing and issuance of the drawn up order is dispensed with. 14 All concerned authorities to act on a copy of this order and scheme duly authenticated by Company Registrar, High Court, Bombay. (A.M Khanwilkar J) 5