IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO. 1005 OF 2009 CONNECTED WITH COMPANY APPLICATION NO. 1184 OF 2009 In the matter of The Companies Act, 1956 And In the matter of Sections 391 to 394 of the said Act, 1956 And In the matter of the Scheme of Amalgamation of: Alpha X‐Ray Technologies (India) Private Limited And Meditronics HealthCare Private Limited With Philips Electronics India Limited Alpha X‐Ray Technologies (India) Private Limited …Petitioner/Transferor Company AND COMPANY PETITION NO. 1006 OF 2009 CONNECTED WITH COMPANY APPLICATION NO. 1185 OF 2009 Meditronics HealthCare Private Limited …Petitioner / Transferor Company Mr. Gaurav Joshi with Mr Devesh Juvekar i/b Khaitan & Co., Advocate for the Petitioners in both Petitions. Mr. P. Ramarao, Official Liquidator present in both Petitions. Mr. C. J. Joy i/b Mr. S K Mohapatra for Regional Director in both Petitions. CORAM: S.J. Kathawalla J. DATE: 26th February 2010 P.C: 1. Heard learned counsel for the parties. 2. The sanction of the Court is sought under Sections 391 to 394 of the Companies Act, 1956 to the Scheme of Amalgamation of Alpha X‐Ray Technologies (India) Private Limited and Meditronics HealthCare Private Limited (the Transferor Companies) with Philips Electronics India Limited, the Transferee Company. 3. Counsel appearing on behalf of the Petitioners has stated that they have complied with all requirements as per directions of this Court and they have filed necessary affidavits of compliance in the Court. Moreover, the Petitioner Companies undertake to comply with all statutory requirements, if any, as required under the Companies Act, 1956 and the rules made thereunder. The undertaking is accepted. 4. The Regional Director has filed an Affidavit stating therein that save and except as stated in para 6(a) and 6(b) of the said affidavit, the Scheme does not appear to be prejudicial to the interest of shareholders and public. The paragraphs 6(a) and 6(b) of the said Affidavit read thus :‐ (a) It is observed that salary has been paid to Ms. Jaya Alreja relative of a director during the financial year 2007‐08 and 2008‐09 for Rs.7,44,600 and Rs.9,74,380 respectively which attracts the provisions of section 314(1B) of the Companies Act, 1956 in respect of the First Transferor Company. Similarly it appears that consultancy fees has been paid by First Transferor Company to Vashdev Enterprises in which Vashdev Mordan, is partner who is related to Mr. Vikram Mordani. the fee paid during the financial year 31/03/2007 was Rs.3 lacs and during the year 31/3/2008 the fee paid was Rs.3.40 lacs. Hence provisions of section 297 is attracted. In this connection the Registrar of Companies Mumbai is being directed to initiate necessary penal action against the company and its directors in this regard. This is for the information of this Hon’ble High Court. (b) As per submissions made in para 5(vi) herein above the Transferee Company has to file similar petition before the Hon’ble High Court of West Bengal at Kolkata. 5. The Petitioner Companies tenders an Affidavit dated 17th February 2010 of one Mr. Michiel Verheijen, who is the Director of both the Transferor Companies in reply to the above referred objection of the Regional Director. So far as objection raised in paragraph 6(a) of the said Affidavit of Regional Director is concerned it is inter alia stated that there is no violation of the provisions of Section 297 and 314(1B) of the Companies Act, 1956 by the First Transferor Company and that the present order will not come in the way of the Registrar of Companies, Mumbai initiating such action. It is also stated that as and when the proceedings are initiated, for the aforesaid alleged technical infractions/violations, the same will be contested and/or compounded as the case may be and as legally advised and that the present scheme would not come in the way of such proceedings. 6. The registered office of Philips Electronics India Limited, the Transferee Company is situated in the State of West Bengal. In paragraph 30 of the Company Petition No. 1005 of 2009 and in paragraph 31 of the Company Petition No. 1006 of 2009, the Petitioner Companies had given an undertaking that the Transferee Company will file separate Petition before the Hon’ble Calcutta High Court. However the Transferee Company has not filed any such Petition in the said Court. Therefore in paragraph 6(b) of his Affidavit, the Regional Director has stated that the Transferee Company has to file similar Petition before the Hon’ble High Court of West Bengal at Calcutta. 7. In reply to the aforesaid objection, the Petitioner Companies in their above referred affidavit have stated that the Transferor Companies are 100% subsidiaries of the Transferee Company, that no new shares are being issued and the networths are positive and that such Petition is not required to be filed by the Transferee Company in view of the judgment of this Hon’ble Court in the case of Mahaamba Investments Ltd. V/s. IDI Limited reported in (2001) 105 Company Cases 16 (Bom). It is further stated that no such Petition has in fact been filed in the Hon’ble Calcutta High Court. The Petitioner Companies has now prayed in the said Affidavit that the Petitioners may be discharged from requiring the Transferee Company to file such Petition in the Hon’ble Calcutta High Court. In view thereof the Petitioners are discharged from requiring the Transferee Company to file such petition before the Calcutta High Court. 8. The Official Liquidator has filed his Report in Company Petition No. 1005 of 2009 and 1006 of 2009 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. 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 Nos. 1005 of 2009 and 1006 of 2009 filed by the Transferor Companies are made absolute in terms of prayers clauses (a) to (f) of the respective Petition. So far as the violation of section 297 and 314(1B) of the Companies Act, 1956 by the First Transferor Company are concerned, the Registrar of Companies/Regional Director, Western Region, are at liberty to take appropriate action pursuant to the Companies Act, 1956 against the First Transferor 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 30 days from the date of the order. 12. The Petitioners in all the Company Petitions to pay Cost of Rs.7500/‐ each to the Regional Director and to the Official Liquidator Costs 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 along with the scheme duly authenticated by the Company Registrar, High Court, Bombay. (S. J. Kathawalla J.)