1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH COMPANY PETITION NO. 1 OF 2010 Connected with COMPANY APPLICATION NO. 1 OF 2010 AND COMPANY PETITION NO. 2 OF 2010 Connected with COMPANY APPLICATION NO. 2 OF 2010 COMPANY PETITION NO. 1 OF 2010 Connected with COMPANY APPLICATION NO. 1 OF 2010 In the matter of Sections 391 to 394 of the Companies Act, 1956; AND In the matter of Scheme of Amalgamation of Khandelwal Yantra Private Limited with Precision Drawell Private Limited. Khandelwal Yantra Private Limited, a cmp. incorporated under the Companies Act, 1956, having its Registered office at “Keshav”, Block No. 6, 10 th Bridge, Kamptee Road, Nagpur 440 004. ... PETITIONER/ Transferor Company COMPANY PETITION NO. 2 OF 2010 Connected with COMPANY APPLICATION NO. 2 OF 2010 2 Precision Drawall Private Limited, a cmp. incorporated under the Companies Act, 1956, having its Registered office at “Keshav”, Block No. 6, 10 th Bridge, Kamptee Road, Nagpur 440 004. ... PETITIONER/ Transferee Company Shri A.S. Murty, Advocate for the petitioners. Shri S.K. Mishra, Assistant Solicitor General of India, for Regional Director, Western Region. Shri Rakesh Tiwari, Official Liquidator in person. ..... CORAM : B.P. DHARMADHIKARI, J. JULY 16, 2010. ORDER UNDER SECTION 394 OF THE COMPANIES ACT, 1956. Heard learned counsel for the parties. 2. The sanction of this Court is sought under Sections 391 to 394 of the Companies Act, 1956, to the Scheme of Amalgamation of Khandelwal Yantra Private Limited with Precision Drawell Private Limited and their respective shareholders and creditors. 3. Counsel appearing on behalf of the petitioners has 3 stated that he has complied with all requirements as per directions of this Court and he has filed necessary affidavits of compliance in the Court. 4. The Counsel appearing on behalf of the petitioners has stated that the petitioners have filed Company Applications No. 1 of 2010 and 2 of 2010 respectively for seeking the dispensation from holding meeting of the shareholders, secured creditors and unsecured creditors. Counsel appearing on behalf of the petitioners has stated that pursuant to order dated 08.01.2010, this Court has granted the dispensation from holding the meeting of shareholders, secured and unsecured creditors. 5. Attention is also invited to the orders dated 29.01.2010 passed in this matter while admitting the petitions. Accordingly, the notices have been served on Regional Director, Western Region, Ministry of Corporate Affairs, Mumbai; Registrar of Companies, Mumbai; Official Liquidator attached to this Court. The direction to serve unwilling or non consenting 4 secured creditors by registered post acknowledgment due is also complied with. The notice of hearing has been published in Indian Express (English) and Lok Satta (Marathi) on 13.02.2010. 6. With the assistance of learned counsel and Official Liquidator, I have perused the records, particularly the affidavit dated 08.03.2010 filed vide Stamp No. 3022 of 2010 on 09.03.2010 with its annexures. The necessary compliances are on record. 7. As per the observation raised by the Regional Director in their report vide Affidavit dated 17.03.2010 (only in Company Petition No. 1 of 2010), have expressed after going through the Scheme of Amalgamation that the scheme is not prejudicial to the interest of creditors, shareholders and public and has requested the Court to pass such order as deem fit and proper. 8. I have perused the affidavit of Regional Director, Western Region, Shri Rakesh Chandra, dated 17.03.2010 and the 5 pursis filed by the Official Liquidator on 22.04.2010 vide Stamp No. 4860 of 2010. The Official Liquidator has affirmed that affairs of Transferor company have not been conducted in a manner prejudicial to the interest of its members as general public. The Regional Director, Western Region has in para 6 of his affidavit has only pointed out the modification in date as per Section 97 of the Companies Act, 1956. The affidavit accepting that modification is also placed on record by the applicants on 07.07.2010 vide Stamp No. 7036 of 2010. In view of this position, the scheme as proposed shall stand modified only to the extent mentioned below : That (i) as per Section 394(3) of the Companies Act, 1956, this Court's order shall be filed by both the Transferor and Transferee Companies with the Registrar of Companies with the respective jurisdiction within 30 days after the date of the Court's order in e-form No. 21 prescribed under the (Central Government's) General Rules and Forms, 1956; 6 (ii) the “effective date” for the purpose of amalgamation under the present system shall be the date of entry in MCA 21 database pursuant to Section 97 of the Companies Act, 1956. The combined authorized capital of the Transferor and Transferee company will take effect after filling of e-form 21 and on the date of entry in the MCA 21 portal; The Counsel appearing on behalf of the petitioners has stated that he has filed affidavit of compliance in the Court and assured the Hon'ble Court, that the Transferor Company and Transferee Company on sanctioning the amalgamation scheme, this Court's order will be filed in e-form 21 electronically within 30 days and the suggestion of the Regional Director in para 6 will be implemented. 9. Upon perusal of the entire material placed on records, the Scheme appears to be fair and reasonable and neither violates any provisions of law and nor contrary to any public policy. None of the parties concerned have come forward to 7 oppose the Scheme. Moreover, both the Regional Director and the Official Liquidator have stated in their respective reports that the Scheme as proposed is not prejudicial to the interest of shareholders, creditors and public in general, this Court order as under. 10. That all the property, rights and powers of the Transferor Company specified in the Schedule hereto, be transferred without further act, or deed to the Transferee Company and accordingly, the same shall pursuant to Section 394(2) of the Companies Act, 1956, be transferred to and vest in the Transferee Company for all the estate and interest of the Transferor Company therein, but subject to nevertheless to all charges now affecting the same; 11. That all the liabilities and duties of the Transferor Company be transferred without further act or deed to the Transferee Company and accordingly the same shall be pursuant to Section 394(2) of the Companies Act, 1956, be transferred to 8 and become the liabilities and duties of the Transferee Company; 12. That all the proceedings now pending by or against the Transferor Company be continued by or against the Transferee Company. 13. That the Transferee Company do without further application allot to such member/ members of the Transferor Company as have not given such notice of dissent as is required by clause No. 8 of the Scheme of Amalgamation or compromise or arrangement herein the shares in the Transferee Company to which they are entitled under the said compromise or arrangement; 14. That the Transferor Company do within 30 days after the date of this order cause a certified copy of this order to be delivered to the Registrar of Companies for registration and on such certified copy being so delivered the Transferor Company shall be dissolved without winding up and the Registrar of 9 Companies shall place all documents relating to the Transferor Company and registered with him on the file kept by him in relation to the Transferee Company and the files relating to the said two companies shall be consolidated accordingly; 15. That any person interested shall be at liberty to apply to the Court in the above matter for any directions that may be necessary; 16. The Transferee Company to lodge a copy of this Order and the Scheme with the concerned Superintendent of Stamps for the purpose of adjudication of stamp duty payable, if any, on the same within 30 days of obtaining the certified copy and/ or an authenticated copy of the order; 17. All authorities concerned to act on a copy of this order duly authenticated by the Registrar. JUDGE *GS.