1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY SCHEME PETITION NO.552 OF 2011 CONNECTED WITH COMPANY SUMMONS FOR DIRECTION NO.475 OF 2011 Brook Trading Company Private Limited …… Petitioner/Demerged Company And COMPANY SCHEME PETITION NO.553 OF 2011 CONNECTED WITH COMPANY SUMMONS FOR DIRECTION NO.476 OF 2011 Tejas Mercantile Private Limited …… Petitioner/ Resulting Company In the matter of Sections 391 to 394 of the Companies Act, 1956; And In the matter of Brook Trading Company Private Limited And In the matter of the Scheme of Arrangement between - Brook Trading Company Private Limited And Tejas Mercantile Private Limited And their respective Shareholders and Creditors 2 Mr. Ashish Kamat i/b M/s Crawford Bayley & Co. Advocates for the Petitioners in both Petitions. Mr. A. R. Varma i/b Mr. H. P. Chaturvedi for Regional Director in both Petitions CORAM: S.C. Dharmadhikari. J Dated: 25th November, 2011 PC: 1. Heard learned Counsel for parties. 2. The sanction of this Hon’ble Court is sought under Sections 391 to 394 of the Companies Act, 1956, to a Scheme of Arrangement between Brook Trading Company Private Limited and Tejas Mercantile Private Limited and their respective Shareholders and Creditors. 3. Counsel appearing on behalf of the Petitioners has stated that they have complied with all the 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. Undertaking is accepted. 4. The Regional Director has filed an Affidavit stating therein that save and except as stated in paragraphs 6(a) to 6 (d) of the Affidavit, it appears that the scheme is not prejudicial to the interest of shareholders and public. In paragraph 6 of the said Affidavit, the Regional Director has stated that: 3 “(a) Clause 15 of the Scheme deals with change in object clause of the Memorandum of Association of the Resulting Company. In this connection, the Resulting Company may be directed to comply with provisions of section 40 read with section 18 of the Act and to file amended copy of Memorandum of Association alongwith Form 21 with the Registrar of Companies. (b) As per clause 19.6 of the scheme provides for increase in the authorized share capital of the Resulting Company to the extent of Rs. 3,00,00,000/-. In this connection the Transferee Company may be directed to comply with provisions of section 94/97 read with Schedule X of the Companies Act 1956, in respect of filing of necessary forms with the Registrar of Companies after payment of necessary filing fee and stamp duty as applicable on the said forms. (c) Clause 22.2 (iii) of the scheme states that difference being excess over liabilities recorded by the Resulting Company, over the amount credited as share capital will be deemed to be and shall be treated as General reserve account in the books of the Resulting Company. In this connection it is submitted that the Reserve arising out of this scheme shall not be utilized for the purpose of declaring dividend by the Resulting Company in future. (d) Under the present scheme of arrangement the Investment/ NBFC business activities are proposed to be transferred from the Demerged Company to the Resulting Company. Hence the Resulting 4 Company shall comply with RBI Regulation/ Guidelines as applicable in this regard.” 5. As far as the objection of the Regional Director in paragraph 6 (a) of his Affidavit is concerned, the Petitioner through their counsel undertake to comply with the provisions of Section 40 read with Section 18 of the Act and to file an amended copy of the Memorandum of Association alongwith Form No.21 with the Registrar of Companies. The said undertaking is accepted. 6. So far as the objection of the Regional Director in paragraph 6 (b) of his Affidavit is concerned, the Petitioner through their counsel undertakes to comply with provisions of Sections 94/97 read with Schedule X of the Companies Act 1956, in respect of filing of necessary forms with the Registrar of Companies after payment of necessary filing fee and stamp duty as applicable on the said forms for increase in the authorized share capital. The said undertaking is accepted. 7. As far as the objection of the Regional Director in paragraph 6 (c) of his Affidavit is concerned, the Petitioner through their counsel undertakes that the reserves arising out of the scheme shall not be utilized for the purpose of declaring dividend by the Resulting Company in future. The said undertaking is accepted. 8. As far as the objection of the Regional Director in paragraph 6 (d) of his Affidavit is concerned, the Petitioner through their counsel 5 undertake to comply with Reserve Bank of India Regulation/ Guidelines with respect to the transfer of Investment / NBFC business activities that are proposed to be transferred from the Demerged Company to the Resulting Company. The said undertaking is accepted. 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. There is no further objection to the Scheme save and except, as stated in paragraph 4 above and since all the requisite statutory compliances have been fulfilled, both the Company Scheme Petitions i.e. the Company Scheme Petition No.552 of 2011 filed by the Demerged Company and the Company Scheme Petition No. 553 of 2011 filed by the Resulting Company are made absolute in terms of prayer clause (a) of the respective Petitions. 11. The Demerged Company to lodge an authenticated 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. 6 12. The Petitioners in both the Company Scheme Petitions to pay costs of Rs.10,000/- each to the Regional Director, Western Region, Mumbai, towards its costs. Costs to be paid within four weeks from today. 13. The Petitioner Company to file a copy of this order alongwith a copy of the Scheme of Arrangement with the concerned Registrar of Companies, electronically, alongwith E-Form 21 in addition to the physical copy within 30 days from the date of issuance of the order by the Registry. 14. Filing and issuance of the drawn up order is dispensed with. 15. All concerned authorities to act on a copy of this order along with the Scheme duly authenticated by Company Registrar, High Court, Bombay. (S. C. Dharmadhikari, J)