IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO. 830 OF 2009 CONNECTED WITH COMPANY APPLICATION NO. 962 OF 2009 In the matter of Sections 391 and 394 of the Companies Act, 1956; (1 of 1956) And In the matter of Scheme of Amalgamation of JCB Manufacturing Limited with JCB India Limited JCB Manufacturing Limited. … Petitioner/ Transferor Company Mr. Mayur Khandeparkar, Counsel i/b M/s. Madekar and Company, Advocates for Petitioners Mr. Anurag Gokhale i/b S.K. Mohpatra for the Regional Director. Mr. P. Ramarao, Official Liquidator present. CORAM : S.J. KATHAWALLA J. DATE : 5th February 2010 P.C. 1. Heard Learned Counsels for the parties. 2. The sanction of the Court is sought under Sections 391 and 394 of the Companies Act, 1956 to a Scheme of Amalgamation of JCB Manufacturing 2 2 Limited, Transferor Company with JCB India Limited, the Transferee Company. 3. The counsel for Petitioner states that the Registered Office of JCB India Limited, the Transferee Company, is situated in New Delhi and the Petition filed by the said Company in Delhi High Court is pending final hearing. 4. Counsel appearing on behalf of the Petitioner has stated that the Petitioner has complied with all requirements as per directions of this Court and it has filed necessary affidavits of compliance in the court. Moreover, Petitioner Company undertakes to comply with all statutory requirements, if any, as required under the Companies Act, 1956 and the Rules made thereunder. Undertaking is accepted. 5. The Regional Director has filed an affidavit stating therein that save and except as stated in paragraph 6(i) and 6(ii) of the said Affidavit, the Scheme does not appear to be prejudicial to the interest of the shareholders and public. (i) The shares of the Transferor and Transferee Company are held by Foreign Body Corporates and its nominee. In the Transferor Company the preference shares are held by the Transferee Company, this shall be cancelled as per the clause 16.4 of the Scheme. As regards issue of new shares by the Transferee Company pursuant to clause 13.1 of the 3 3 scheme, the Transferor and Transferee Company may be directed to comply with RBI guidelines in this regard. (ii) The Director of the Transferor Company in his affidavit dated 05/12/2009 (Exhibit ‘C’) stated that the Petitioner Company and/or its director have not contravene any provisions of the Companies Act, 1956 during the last three years. However it is observed that the Petitioner Company has not appointed whole time company secretary as required under section 383A of the Act. 6. So far as objection in paragraph 6 (i) of the said Affidavit is concerned, the counsel for the Petitioner Company tendered two Affidavits both dated 1st February 2010 one of which is Affirmed by the Petitioner/ Transferor Company and another by the Transferee Company. In the said Affidavits, both the Companies have given an undertaking that it will ensure that the Transferee Company will comply with RBI guidelines while issuing its new shares pursuant to clause 13.1 of the Scheme. The Affidavit is taken on record and undertaking given therein is accepted. 7. As regards the objection in paragraph 6(ii) of the said Affidavit, the Counsel on behalf of the Petitioner Company undertakes that the Petitioner Company shall 4 4 appoint a Company Secretary as soon as possible. The said undertaking is accepted. 8. The Official Liquidator has filed a Report stating therein that the affairs of the Petitioner Company have been conducted in a proper manner and that the Petitioner Company may be ordered to be dissolved. 9. From 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. Since all the requisite statutory compliances have been fulfilled, the Company Petition No. 830 of 2009 filed by Petitioner Company is made absolute in terms of prayer Clauses (a) to (f). The Scheme is sanctioned subject to the order to be passed by Delhi High Court in the Petition filed by the Transferee Company. 11. The Petitioner Company to lodge a copy of this order 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. 12. The Petitioner Company to pay costs of Rs.7,500/- each to the Regional Director, Western Region, Mumbai and also to pay costs of Rs.7,500/- to the 5 5 Official Liquidator, High Court Bombay Costs to be paid within four weeks from the date of the Order. 13. Filing and issuance of the drawn up order is dispensed with. 14. All concerned authorities to act on a copy of this order alongwith the scheme duly authenticated by Company Registrar, High Court, Bombay. (S.J. KATHAWALLA J.)