-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Company Petition No.350 of 2008 connected with Company Application No. 108 of 2008 In the matter of Sec.391 and 394 of the Companies Act, 1956; and In the matter of Scheme of Amalgamation between Mirasu Marketing Limited with Fem Care Pharma Limited and their respective shafreholders. Mirasu Marketing Limited ..Petitioner/ Transferor company and Company Petition No. 351 of 2008 connected with Company Application No.109 of 2008 Fem Care Pharma Limited ..Petitioner/ Transferor Company Mr.Hemant Sethi i/b Hemant Sethi and Co. for petitioners Mr.S.Ramakantha Dy.O.L. in C.P.No.350 of 2008 Mr.C.J.Joy i/b Mr.S.K.Mohopatra for R.D. in both petitions. CORAM: S.C.DHARMADHIKARI CORAM: S.C.DHARMADHIKARI CORAM: S.C.DHARMADHIKARI J. J. J. 7th July 2008 7th July 2008 7th July 2008 P.C. P.C. P.C. 1. Heard the learned Counsel for the parties. 2. The sanction of the Court is sought under sections 391 to 394 of the Companies Act, 1956 to a Scheme of -2- Amalgamation between Mirasu Marketing Limited and Fem Care Pharma Limited and their respective shareholders. 3. 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. 4. The only contention raised by the Regional Director in his affidavit in reply is that both the petitioner companies were inspected under section 209A of the Companies Act, 1956 by the Inspecting Officer. That on the basis of violation pointed out by the inspecting officer in his inspection report in respect of both the Companies, Registrar of Companies has been directed to issue show cause notices and file prosecution accordingly and that the Scheme of Amalgamation may considered on merits without diluting the proposed penal action by the Ministry/ROC. It is further stated that save as aforesaid the Scheme is not prejudicial to the interest of Creditors and Shareholders and public. 5. It is clarified that sanctioning of the scheme will not dilute the proposed penal action to be taken by the Ministry/ROC against the trasnsferee company and the Directors of Transferor and Transferee companies. My -3- attention has been invited by Official Liquidator to the remarks of the Chartered Accountant/Auditor and he has contended that the report is qualified. 6. Mr.Sethi after taking instructions makes a statement that all efforts would be made to rectify the defects and deficiencies as notified in the report but he has reiterated that the auditors have not noticed any misappropriation of funds or mis application thereof so also any breach of the Trust on the part of the Manager. In the light of the report of the Liquidator and auditor perused by me, I am satisfied that the affairs of the transferor company are not being carried on in a manner prejudicial to the interest of the creditors and share holders. I am further satisfied by the statement of Mr.Sethi recorded above. 7. The Official Liquidator has filed a report in Company Petition No.350 of 2008 stating that the affairs of the Transferor Company has been conducted in a proper manner and that the transferor company may be order to be wound up subject of remarks made in para 13(ii) of the Report of Auditors. Mr.Sethi informs that in so far as remarks made by the Auditors in his report, suitable reply has been given which is part of the Report. It is further stated -4- that the Auditors in their summary of findings have observed that they have not noticed any instances of misapplication of breach of trust on the part of management of the Transferor company. 8. 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. 9. There is no objection to the Scheme and since all the requisite statutory compliances have been fulfilled, Company Petition No.350 of 2008 and 351 of 2008 are made absolute in terms of prayer clause (a). 10. 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. 11. The petitioners in both the Companies to pay cost of Rs.5000/- each to the Regional Director. Petitioner in Company Petition No.350 of 2008 to pay costs of Rs.5000/- -5- to the Official Liquidator, High Court, Bombay. Costs to be paid within a period of 4 weeks. Petitioner to comply with statutory compliances, applicable, if any. 12. Needless to state that no penal proceedings or action initiated against the transferor or transferee company or their director or officers in default shall be prejudiced in any manner merely because this Court has sanctioned the scheme. 13. Filing and issuance of the drawn up order is dispensed with. All concerned authorities to act on a copy of this order duly authenticated by Company Registrar, High Court, Bombay. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)