THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Company Petition No.98, 99 and 100 of 2009 (Dated : 08-04-2010) Between: C.P.No.98 of 2009 M/s.Cocananda Energy & Infrastructure Limited A company incorporated under the companies Act Represented by its Director Mr.T.Upender …Petitioner/ 1st Transferor Company THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Company Petition No.98, 99 and 100 of 2009 COMMON ORDER: These Company Petitions have been taken out under Sections 391 and 394 of the Companies Act, 1956 seeking sanction to the scheme of amalgamation as approved by the shareholders of the respective companies. More precisely, Company Petition No.98 of 2009 is filed by M/s.Cocanada Energy & Infrastructure Limited (hereinafter referred to as “1st Transferor Company”), Company Petition No.99 of 2009 is filed by M/s.Kalyan Energy Limited (hereinafter referred to 2nd Transferor Company) and Company Petition No.100 of 2009 is filed by M/s.Arunodaya Green Fuels Limited (hereinafter referred to as Transferee Company”) 2. The 1st Transferor company was originally incorporated as a limited company under the name and style of M/s.Suryachakra Seafoods Limited on 11th March, 1987 in the State of Andhra Pradesh under certificate of Incorporation No.7269 of 1986-87 issued by the Registrar of Companies. Subsequently, its name was changed to M/s.Cocanada Fisheries Limited and a fresh certificate of incorporation was issued by the Registrar of Companies, Andhra Pradesh, Hyderabad on 24th November, 2003. Again, its name was changed to M/s. Cocanada Energy & Infrastructure Limited and a fresh certificate of incorporation was issued by the Registrar of Companies, Andhra Pradesh, Hyderabad on 2nd April, 2008. 3. The authorized share capital of the 1st Transferor company is Rs.10,00,00,000/- divided into 1,00,00,000 equity shares of Rs.10/- each. The issued, subscribed and paid up capital of the company is Rs.83,61,900/- divided into 8,36,190 equity shares of Rs.10/- each fully paid up. 4. M/s.Kalyan Energy Limited (2nd Transferor Company) was originally incorporated as a private limited company under the name and style of M/s.Kalyan Sea Foods Private Limited on 11th March, 1987 in the State of Andhra Pradesh under Certificate of Incorporation No.7268 of 1986-87 issued by the Registrar of Companies, Andhra Pradesh, Hyderabad. Subsequently, it changed its name to M/s.Kalyan Seafoods Limited and obtained fresh certificate of incorporation from the Registrar of Companies on 18th September 1992. Again, it changed its name to M/s.Kalyan Marine & Agro Products Limited and obtained a fresh certificate of incorporation from the Registrar of Companies, Andhra Pradesh, Hyderabad on 17th July 1995. Once again, it changed its name to Kalyan Energy Limited and obtained a fresh certificate of incorporation from the Registrar of Companies, Andhra Pradesh, Hyderabad on 17th March, 2008. 5. The authorized share capital of the 2nd Transferor company is Rs.5,00,00,000/- divided into 50,00,000 equity shares of Rs.10/- each. The issued, subscribed and paid up capital of the company is Rs.36,07,400/- divided into 3,60,740/- equity shares of Rs.10/- each fully paid up. 6. M/s.Arunodaya Green Fuels Limited (Transferee Company) was originally incorporated as limited company under the name and style of M/s.Ushodaya Marine Products Limited on 24th June 1994 in the State of Andhra Pradesh under certificate of Incorporation No.01-17779 of 1994-95 issued by the Registrar of Companies, Andhra Pradesh, Hyderabad. Subsequently, it changed its name to M/s.Ushodaya Marine Products Private Limited and obtained a fresh certificate of incorporation consequent on the change of the change of the name on 29th August 2002. Once again, it changed its name to M/s.Arunodaya Green Fuels Private Limited and obtained a fresh certificate of incorporation on 13th March 2007. Once again, it changed its name to M/s.Arunodaya Green Fuels Limited and obtained a fresh certificate of incorporation from the Registrar of Companies, Andhra Pradesh, Hyderabad on 22nd January 2009. 7. The authorized share capital of the Transferee Company is Rs.5,00,00,000/- divided into 50,00,000 equity shares of Rs.10/- each. The issued, subscribed and paid up capital of the company is Rs.63,07,700/- divided into 6,30,770/- equity shares of Rs.10/- each. 8. The objects of the 1st Transferor company are to promote, establish, generate, operate, distribute, accumulate, maintain, transmit, supply, sell, electricity and/or power by installing, maintaining power plants etc. The objects are more fully described in para 5 of Company Petition No. 98 of 2009. The objects of the 2nd Transferor Company are fully described in para 5 of Company Petition No.99 of 2009. 9. The Board of Directors of the Transferor companies at their respective meetings held on 15.12.2008 and the Transferee Company at its meeting held on 15.12.2008 approved the scheme of amalgamation of the 1st and 2nd Transferor companies with the Transferee Company. The meeting of the shareholders of the 1st Transferor Company came to be held by the Chair-person, as per the orders of this Court dated 1.5.2009 passed in Company Application No.634 of 2009. The chair-person submitted report and as per the report, all the shareholders unanimously approved the scheme of amalgamation. A chair-person came to be appointed to conduct the meeting of the shareholders of the 2nd Transferor company on 1.5.2009 in Company Application No. 635 of 2009. The chair-person conducted the meeting and submitted his report. As per the report, all the shareholders unanimously approved the scheme of amalgamation. The 1st and 2nd Transferor companies have not availed secured or unsecured loans. 10. This Court, by order dated 1.5.2009, has dispensed with the convening of the meeting of the shareholders of the Transferee Company since all the shareholders have filed their affidavits reporting no objection for the proposed scheme of amalgamation. 11. These three company Petitions came to be admitted on 02nd July 2009. The petitioners were directed to take out publication in “The Hindu” (English daily), Visakhapatnam edition and “Andhra Prabha” (Telugu daily), Rajahmundry edition. The petitioners were also directed to take out notice to the Official Liquidator and the Central Government fixing the date of hearing as 30th July 2009. The petitioners carried out publications and filed copies of publication as proof. No objections have been received from any quarter as on this day for the proposed scheme of amalgamation. 12. It is stated in para 17 of the respective company petitions that the proposed amalgamation will increase the business and market share and reduce the administrative and overhead costs and there will be synergy of operations. 13. The Official Liquidator filed report in Company Petition Nos. 98 and 99 of 2009. The Official Liquidator, in his report bearing O.L.R.No.285 of 2009 filed in Company Petition No. 98 of 2009, pointed out that a little under 30% of the aggregate shareholders attended the meeting for considering the proposed scheme of amalgamation. 14. As per sub-section (2) of Section 391 of the Companies Act, 1956, what is required is a majority in number representing three-fourths in value of the creditors. For better appreciation, I may refer Section 391(2) of the Act, which reads as hereunder:- 391(2) If a majority in number representing three- fourths in value of the creditors, or class of creditors, or members, or class of members, as the case may be, present and voting either in person, or where proxies are allowed[under the rules made under section 643], by proxy, at the meeting, agree to any compromise or arrangement, the compromise or arrangement shall, if sanctioned by the [Tribunal], be binding on all the creditors, all the creditors of the class, all the members, or all the members of the class, as the case may be, and also on the company, or in the case of a company which is being wound up, on the liquidator and contributories of the company; Provided that no order sanctioning any compromise or arrangement shall be made by the [Tribunal] unless the [Tribunal] is satisfied that the company or any other person by whom an application has been made under sub-section (1) has disclosed to the [Tribunal] by affidavit or otherwise, all material facts relating to the company, such as the latest financial position of the company, the latest auditor’s report on the accounts of the company, the pendency of any investigation proceedings in relation to the company under Sections 235 to 251 and the like.]” 15. It is explicit that majority of the members, who attended the meeting have unanimously approved the scheme. Therefore, the objection raised by the Official Liquidator cannot be an impediment for considering the proposed scheme of amalgamation. 16. As per the report submitted by the Registrar of Companies, the Transferee Company has to obtain no objection letters from the financial institutions to the proposed scheme of amalgamation. The petitioners placed on record no objection letters from the financial institutions. 17. Heard learned counsel appearing for the petitioners, learned counsel appearing for the Official Liquidator and learned Assistant Solicitor General appearing on behalf of the Registrar of Companies and perused the material brought on record. 18. 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. Despite notice being published, none of the parties concerned have come forward to oppose the scheme nor any objections have been received from any quarter. 19. In the facts and circumstances, I do not see any impediment in granting sanction to the scheme of amalgamation as proposed, since all the requisite statutory compliances have been fulfilled. 20. Accordingly, the Company petitions are allowed sanctioning the scheme of Amalgamation. The parties to the scheme or other persons interested shall be at liberty to apply to this Court for any directions that may be necessary in regard to working of the scheme; and the said companies do file with the Registrar of Companies an authenticated copy of this order and the scheme within 30 days from this day. 21. The Transferee company to pay costs of Rs.3,000/- each to the Regional Director, Department of Company Affairs, Southern Region, Chennai and also the Official Liquidator attached to this Court towards costs of these petitions. Costs are to be paid within four weeks from today. _____________________ B.SESHASAYANA REDDY, J Dt.08-04-2010 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Company Petition Nos. 98,99 and 100 of 2009 DATED 20-04-2010