1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.872 OF 2009 CONNECTED WITH COMPANY APPLICATION NO.459 OF 2009 In the matter of Sections 391 to 394 of the Companies Act, 1956; And In the matter of Scheme of Amalgamation of Nalanda Entertainment and Resorts Limited with Hotel Goradia’s Private Limited and their respective shareholders and creditors. Nalanda Entertainment and Resorts Limited …Petitioner / Transferor Company WITH COMPANY PETITION NO.873 OF 2009 CONNECTED WITH COMPANY APPLICATION NO.460 OF 2009 Hotel Goradia’s Private Limited …Petitioner / Transferee Company Mr. Anshul Gupta i/b Rajani Associates, Advocates for both the Petitioners. Mr. P.Ramarao, Official Liquidator, present in CP No.872 of 2009. Mr. Riyas Chagla i/b Mr. S.K. Mohopatra for the Regional Director in both the Petitions. CORAM: S.J. Kathawalla, J. DATE: 30th April, 2010 P.C.:- 1. Heard learned counsel for the Parties. 2. The sanction of this Hon’ble Court is sought under Sections 391 to 394 of the Companies Act, 1956 to the Scheme of Amalgamation of Nalanda Entertainment and Resorts Limited with Hotel Goradia’s Private Limited and their respective shareholders and creditors. 2 3. Counsel appearing on behalf of both the Petitioner Companies 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, both the Petitioner Companies undertake to comply with all statutory requirements, if any, as required under the Companies Act, 1956 and the rules made there under. The Undertaking is accepted. 4. The Regional Director has filed an Affidavit stating therein save and except as stated in paragraph 6 of the said Affidavit, the Scheme does not appear to be prejudicial to the interest of shareholders and public. The paragraph 6 of the said Affidavit reads thus:- “The Deponent further submits that, Mr.Suresh Goradia Director of the Transferor and Transferee Company stated in para 3 of hid affidavits dated 22/12/2009 (Exhibit ‘C-1’) and affidavit dated 19/01/2010 (Exhibit ‘C-2’) that company and its directors have not contravened any provisions of the Companies Act during the last three years. However, it is observed that the Transferor and Transferee Company have violated the provisions of section 211 read with Accounting Standard – 15. Further it is observed that the Transferee Company has prima facie violated the provisions of section 297 of the Act in respect of its transactions of room rent service to Mrs Priti R Chand (married daughter of director). In this connection the Registrar of Companies is being directed to initiate necessary penal action in this regard. This is for the information of this Hon’ble High Court”. 5. So far as the observations made by the Regional Director in Paragraph 6 of his affidavit is concerned, counsel appearing for the Petitioner states that the Petitioner Companies have filed the Affidavit in reply to the issues raised by the Regional Director. In the said Affidavit it is, inter alia, stated that none of the alleged violations referred by the Regional Director in his affidavit have any bearing whatsoever on the Scheme of Amalgamation and hence, do not come in the way of the Scheme being sanctioned by the Court. It is further 3 stated that it is always open to the Regional Director to adopt such proceedings in accordance with law with regards to alleged violations against the Petitioner Companies and its Directors, as the case maybe, even after the Scheme has been sanctioned. It is also stated that as and when it shall be determined that the Petitioner Companies and its Directors have violated the provisions of Sections 211 and 297 of the Companies Act, 1956, the Transferee Company will take suitable steps as provided under the Companies Act, 1956. It is also stated that the above alleged violations are technical in nature and does not affect the Scheme and that the Transferee Company has otherwise complied with the statutory provisions of the Companies Act, 1956 and will comply with relevant provisions of the Companies Act, 1956. It is also stated that the Transferee Company has no objection to liberty being reserved to the Regional Director subject to right of the Petitioner Companies to defend such proceedings in accordance with law and that if any such proceedings are adopted against the Transferor Company, the same can be and may be continued against the Transferee Company. The Petitioner Companies undertake to apply to the appropriate authority under Section 621A of the Companies Act, 1956 for compounding of aforesaid violations, if any, committed by them. The undertaking is accepted. 6. The Official Liquidator has filed a Report in Company Petition No.872 of 2009 stating therein that the affairs of the Transferor Company have been conducted in a proper manner and the Transferor Company may be ordered to be dissolved. 7. 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. 4 8. Since all the requisite statutory compliances have been fulfilled, Company Petition No.872 of 2009 and 873 of 2009 filed by the Transferor Company and the Transferee Company respectively are made absolute in terms of prayer clauses (a) to (g) of the respective Petitions. The Regional Director is at liberty to take appropriate proceedings in accordance with law against the Petitioner Companies for the aforesaid violations. 9. Both the Petitioner Companies 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. 10. The Petitioner Companies in both the Company Petitions to pay cost’s of Rs.7500/- each to the Regional Director, Western Region, Mumbai. Petitioner in the Company Petition Nos.872 of 2009 filed by the Transferor Company to pay a sum of Rs.7500/- to the Official Liquidator, High Court, Bombay, towards its costs. Costs to be paid within four weeks from today. 11. Filing and issuance of the drawn up order is dispensed with. 12. 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.)