1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICITON COMPANY SCHEME PETITION NO 86 OF 2011 CONNECTED WITH COMPANY SUMMONS FOR DIRECTION NO 32 OF 2011 In the matter of Section 391 & 394 of Companies Act, 1956 And In the matter of Scheme of Amalgamation of Henkel CAC Private Limited with Henkel Adhesives Technologies India Private Limited and their respective shareholders. Henkel CAC Private Limited, a Company ) Incorporated under the provisions of Companies Act, ) 1956 having its registered office at 906, Embassy Center, ) Nariman Point, Mumbai – 400 021. ) ……..Petitioner Mr. Hemant Sethi i/b Hemant Sethi & Co. Advocates for the Petitioner. Dr. T. Pandian Official Liquidator present. Mr. C.J. Joy, i/b H.P. Chaturvedi for the Regional Director. Mr. Ajay Panicker, i/b Ajay Law Associates for M/s Sunerland Developers Private Limited for M/s Sunerland Developers Private Limited. Mr. Chacko Joseph i/b Civil Juris for M/s Prabhat Powertech Pvt. Ltd. CORAM: S.J. KATHAWALLA, J DATE: 10TH JUNE 2011 P.C. 1. The sanction of the Court is sought under Sections 391 to 394 of the Companies Act, 1956 to the Scheme of Amalgamation of Henkel CAC Private Limited, the Transferor Company with Henkel Adhesives 2 Technologies India Private Limited, the Transferee Company and their Respective Shareholders. 2. The Counsel for the Petitioner submits that the Petitioner Company is wholly owned subsidiary of Henkel Adhesives Technologies India Private Limited, the Transferee Company and that by an order passed by this Court in Company Summons for Direction No 32 of 2010 on 14th January 2011, the filing of separate Company Summons for Direction and Company Scheme Petition by the Transferee Company was dispensed with. 3. Counsel appearing on behalf of the Petitioner has stated that the Petitioner has complied with all requirements as per directions of this Court and they have filed necessary affidavits of compliance in the Court. Moreover, the Petitioner undertakes to comply with all statutory requirements, if any, as required under the Companies Act, 1956 and the rules made thereunder. The said undertaking is accepted. 4. The Regional Director has filed an affidavit stating therein that save and except as stated in paragraphs 6(a) of the said affidavit, it appears that the scheme is not prejudicial to the interest of shareholders and public. In paragraphs 6(a) of the said Affidavit, the Regional Director has stated that: “ That the Deponent further submits that in clause 9 (iii) of the Scheme, it is stated that any surplus arising out of amalgamation shall be credited to the General Reserve in the books of the Transferee Company. In this connection it is respectfully submitted that the Transferee Company shall not utilize the said reserve for the purpose of declaring dividend in future out of this reserve so created as the same cannot be termed as a free reserve.” 5. The Petitioner through their Counsel undertakes that the Transferee Company shall not utilize the said reserve for the purpose of declaring dividend in future out of this reserve so created as the same cannot be termed as a free reserve. The said Undertaking is accepted. 3 6. M/s Sunerland Developers Private Limited, one of the Unsecured Creditor is opposing the Scheme on the ground that they have claim against the Petitioner Company. The learned Counsel appearing for the Petitioner states that the purported claim of the said Creditor is disputed and that the said Creditor cannot use Scheme as tool to recover debt which is disputed. It is further stated that as against total Assets of the Petitioner as on September 2010 which are in the sum of Rs. 41,597.90/- Lakhs the corresponding liabilities are in the sum of about Rs. 38,137.56/- Lakhs. The net assets are therefore in the sum of about Rs 3,460.34/- Lakhs. Moreover the Scheme does not affect the rights of Creditors as there is no Arrangement or Compromise with any of the Creditors. 7. The learned counsel appearing for the Petitioner is correct in his submission. It will be open to the said unsecured creditor to pursue legal remedy as may be advised for recovery of their claim amount. 8. The Official Liquidator has filed his report stating therein that the affairs of the Petitioner/Transferor Company have been conducted in a proper manner and that the Petitioner/Transferor Company may be ordered to be dissolved. 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. Since all the requisite statutory compliances have been fulfilled Company Scheme Petition is made absolute in terms of prayer Clause (a) of the Petition. 11. The Petitioner 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 4 adjudication of stamp duty payable, if any, on the same within 60 days from the date of order. 12. The Petitioner to pay costs of Rs.10,000/- each to the Regional Director and also to the Official Liquidator. Costs to be paid within four weeks from today. 13. Filing and issuance of the drawn up order is dispensed with. 14. All authorities concerned to act on a copy of this order along with the Scheme duly authenticated by the Company Registrar, High Court (O. S.), Bombay. (S.J. KATHAWALLA, J)