IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY SCHEME PETITION NO. 75 OF 2011 CONNECTED WITH COMPANY SUMMONS FOR DIRECTION NO. 16 OF 2011 VYOMAN LEISURE AND INFRAVEST INDIA PRIVATE LIMITED …………Petitioner / Transferor Company AND COMPANY SCHEME PETITION NO. 76 OF 2011 CONNECTED WITH COMPANY SUMMONS FOR DIRECTION NO. 17 OF 2011 PAN INDIA PARYATAN PRIVATE LIMITED …………Petitioner / Transferee Company In the matter of the Companies Act, 1956 (1 of 1956); AND In the matter of Sections 391 to 394 read with 100 to 103 of the Companies Act, 1956; AND In the matter of Scheme of Amalgamation of Vyoman Leisure and Infravest India Private Limited (‘the Transferor Company’) With Pan India Paryatan Private Limited ( ‘the Transferee Company’) And their respective Shareholders Mr. Rajesh Shah i/b M/s. Rajesh Shah & Co., in both Petitions. Dr. T. Pandian, Official Liquidator, present in the Company Scheme Petition No. 75 of 2011 Mr. C. J. Joy along with Ms. Soma Singh i/b H.P Chaturvedi for Regional Director in both Petitions. CORAM: S. J. Vazifdar, J. DATE: 8th April, 2011 P.C. :- 1. Heard learned counsels for the parties. 2. The sanction of the Court is sought under Sections 391 to 394 read with Section 100 to 103 of the Companies Act, 1956, to the Scheme of Amalgamation of Vyoman Leisure and Infravest India Private Limited with Pan India Paryatan Private Limited, the Transferee Company and their respective shareholders. 3. Learned 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, Petitioner Companies undertakes to comply with all statutory requirements, if any, as required under the Companies Act, 1956 and the Rules made there under. The said undertaking is accepted. 4. The Regional Director has filed an affidavit stating that save and except as stated in paragraphs 6 (a) and 6 (b) of the said affidavit, it appears that the Scheme is not prejudicial to the interest of shareholders and public. 5. The Counsel appearing for the Regional Director has drawn my attention to paragraph 6(a) and 6(b) of the affidavit of the Regional Director in which it is stated that: (a) The Transferor Company has received Rs. 24 crores as Share Application Money and utilized the same by investment in the capital of Transferee Company. Existing authorized share capital of the Transferor Company is not sufficient to issue shares as against Share Application Money received by the Transferor Company. Hence before 2 the present scheme of amalgamation is given effect to, the Transferor Company has to increase its authorized share capital suitably. In this connection the Transferor Company vide its letter dated 23/03/2011 informed that, the shareholders of the Transferor Company have approved the increase in authorized share capital by Rs. 1 crores (comprising of 10 lacs preference shares of Rs.10/- each) and further informed that the Transferor Company is in the process of filing relevant forms and payment of Registration fee with the Registrar of Companies, Mumbai. Copy of letter dated 23/03/2011 received from the Transferor Company is annexed hereto and marked as Exhibit ‘D’. (b) The existing authorized share capital of the Transferee Company is not sufficient for allotment of new Preference shares as per Clause 5.2 of the scheme. The unutilized part of the preference share capital of the Transferee Company and Preference share capital available for re issue under Section 80(4) of the Act due to cancellation of existing preference shares held by the Transferor Company, would enable Transferee Company to allot only 5,12,662 shares whereas Transferee Company has to allot 10 lacs preference shares as per Clause 5.2 of the scheme. Hence the Transferee Company may be directed to comply with the 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 in this regard.” 6. In response to above observations of the Regional Director, the Transferor Company and the Transferee Company have tendered their respective affidavit in reply which are taken on record. As far as the first objection is concerned, the counsel for the Transferor Company states that the Transferor Company has increased its authorised share capital by Rs. 1 crore comprising of 10,00,000 preference shares of Rs. 10 each. As on date, the authorized share capital of the Transferor Company stands increased from Rs. 5,00,000 (Five Lakhs only) comprising of 50,000 equity shares of Rs.10 each to Rs.1,05,00,000 (Rupees One Crore Five Lakh only) comprising of 50,000 equity shares of Rs.10 each and 10,00,000 preference shares of Rs.10 each. Thus, the authorized share 3 capital of the Transferor Company has been suitably increased to issue shares against the share application money received. 7. So far as the second objection is concerned, the counsel for the Transferee Company states that the Equity Shareholders of the Transferee Company have approved the reclassification of the authorized share capital of the Transferee Company vide its Resolution dated 8th March, 2011. Post increase, the authorized share capital of the Transferee Company stands to Rs.13,20,00,000/- (Rupees Thirteen Crores Twenty Lacs) comprising of 1,02,00,000 Equity shares of Rs.10/- each and 30,00,000 Preference Shares of Rs.10/- each. Pursuant to the Scheme, the Transferee Company is required to issue 10,00,000 (Ten Lacs) preference shares of Rs. 10 each to Ganjam Trading Company Private Limited against the share application money provided by Ganjam Trading Private Limited to the Transferor Company. As per the increased authorized share capital, the Transferee Company has 30,00,000 preference shares of Rs. 10 each. Out of which, the Transferee Company has issued 9,97,276 preference shares earlier. Accordingly, the Petitioner Company would have sufficient authorized share capital to issue preference shares pursuant to Clause 5.2 of the Scheme. 8. The Official Liquidator has filed his report in Company Scheme Petition No.75 of 2011 stating therein that the affairs of the Transferor Company have been conducted in a proper manner and that the Transferor Company may be ordered to be dissolved by this Court. 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 has come forward to oppose the Scheme. 4 10. Since all the requisite statutory compliances have been fulfilled, Company Scheme Petition No.75 of 2011 and Company Scheme Petition No.76 of 2011 filed by the Transferor Company and the Transferee Company respectively are made absolute in terms of prayer clauses (a) to (d). 11. The Petitioner Companies to lodge a copy of this order and the Scheme, duly authenticated by the Company Registrar, High Court (O.S.), 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 this Order. 12. Both the Petitioner Companies to pay costs of Rs.10,000/- each to the Regional Director, Western Region, Mumbai and the Petitioner in Company Scheme Petition No.75 of 2011 to pay cost of Rs.10,000 to the Official Liquidator, High Court, Bombay. Costs to be paid within four weeks from today. 13. Filing and issuance of the drawn up order is dispensed with. 14. All concerned authorities to act on a copy of this order along with Scheme duly authenticated by the Company Registrar, High Court, (O. S.), Bombay. (S. J. Vazifdar, J.) 5