1 IN IN IN THE HIGH COURT OF JUDICATURE OF BOMBAY THE HIGH COURT OF JUDICATURE OF BOMBAY THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.291 OF 2008 Creative Health Care Pvt.Ltd. ..Petitioner V/s. RPG Life Science Ltd. ..Respondent. Mr.Mahesh Joshi i/b. M/s.O.P.Soni & Co. for Petitioner. Mr.Darius Khambata a/w. H.N.Thakore i/b. Thakore Jariwala & Assoc. for Respondent. CORAM: CORAM: CORAM: A.M.KHANWILKAR,J A.M.KHANWILKAR,J A.M.KHANWILKAR,J DATE DATE DATE : NOVEMBER 20, 2008. : NOVEMBER 20, 2008. : NOVEMBER 20, 2008. P.C. P.C. P.C. : : : 1. Heard Counsel for the parties. 2. The preliminary objection regarding maintainability of the Petition has been raised on the ground that the Petitioner is pursuing the claim against the Respondent-company when in fact liability of the Respondent company already stands transferred to RPG Life Style Ltd. As per clause 1.15.2 of the Scheme approved by this Court on 14th December, 2007 liability of the Respondent company has been taken over by the said RPG Life Style Ltd. Besides, the name of the Respondent company is now changed to Brabourne Enterprises Ltd. The fact remains that the liability in relation to the claim pressed into 2 service by the Petitioner has been taken over by the RPG Life Style Ltd. on account of approval of the scheme by this Court on 14th December, 2007. Approval of the scheme relates back to 2nd April, 2007. Admittedly, the Petitioner issued statutory notice to the Respondent company after the said date on 25th October, 2007. To get over this position, Counsel for the Petitioner has invited my attention to clause 20.2 of the scheme approved by this Court to contend that primary liability of the Respondent company to discharge all its dues would continue to remain to that of the complainant. Clause 20.2 of the Scheme reads thus: "20.2 After the Effective Date, if any proceedings are taken against RPGLS, it shall defer the same at the cost of Operating Co. and Operating Co shall reimburse and indemnify RPGLS, its directors and officers against all liabilities, costs and expenses incurred or suffered by RPGLS, its directors and officers in respect thereof." On plain reading of this clause, it is apparent that this provision is in relation to the costs of proceedings to be taken over by the Respondent. This clause is not relevant clause for examining whether the liability of the Respondent company has been taken over by the RPG Life Style Ltd. The relevant clause as referred to earlier in that behalf is 3 clause 1.15.2. In the circumstances, the preliminary objection regarding maintainability of this Petition will have to be accepted. This Petition is therefore disposed of with liberty to the Petitioner to pursue the claim against the RPG Life Style Ltd., if they so desire. All questions in that behalf are left open, to be decided on its own merits. 3. It is not necessary for this Court to examine the apprehension of the Petitioner that the Respondent company shall not extend necessary cooperation to RPG Life Style Ltd., as and when the Petitioner would proceed against the said company. As aforesaid, all questions in respect of the prospective proceedings to be resorted to by the Petitioner in relation to the self-same claim against RPG Life Style Ltd. are left open to be decided on its own merits. 4. Petition disposed of on the above terms. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)