IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.797 OF 2009 CONNECTED WITH COMPANY APPLICATION NO.926 OF 2009 In the matter of Sections 391 to 394 of the Companies Act, 1956 (Act I of 1956) AND In the matter of the Scheme of Arrangement and Amalgamation of Total Lubricants India Limited and Total Petroleum India Private Limited (“Transferor Companies”) with Total LPG India Limited (“Transferee Company”) and their respective members Total Lubricants India Limited .. PETITIONER AND 1 COMPANY PETITION NO.798 OF 2009 CONNECTED WITH COMPANY APPLICATION NO.927 OF 2009 Total Petroleum India Private Limited .. PETITIONER WITH COMPANY PETITION NO.796 OF 2009 CONNECTED WITH COMPANY APPLICATION NO.925 OF 2009 Total LPG India Limited ..PETITIONER Mr. Feroz Palkhiwala with Mr. Harinder Toor i/b J. Sagar Associates for the Petitioners. Mr. P. Ramarao, Official Liquidator, present in Company Petition No.797 of 2009 and 798 of 2009. Mr. C. J. Joy and Ms. Lata Patne i/by Mr. S. K. Mohopatra, for the Regional Director CORAM : Dr. D.Y. Chandrachud, J. DATE : 13th November, 2009 PC: 2 1. The sanction of the Court is sought to a Scheme of Arrangement and Amalgamation under Sections 391 to 394 of the Companies Act, 1956 for the amalgamation of Total Lubricants India Limited and Total Petroleum India Private Limited, the Transferor Companies with Total LPG India Limited, the Transferee Company. 2. The Counsel for the Petitioner submits that the Petitioners have complied with all requirements as per directions of this Court and they have filed necessary affidavit of compliance in the Court. Moreover, Petitioner Companies also undertake to comply with all statutory requirements, if any, as required under the Companies Act, 1956 and the Rules made there under. 3. The Regional Director has filed an affidavit stating therein that save and except as stated in paragraphs 6(i), (ii) and (iii), the Scheme does not appear to be prejudicial to the interest of shareholders and the public. In paragraphs 6(i) to 6 (iii) of the said Affidavit, the Regional Director has stated that :- 3 (a) paragraph 6 (i) - As the Transferee Company has to issue its shares to shareholder of Transferor Company, which are having 100% foreign holding, Transferee Company may be directed to comply with the requirement of RBI/ FEMA regulations, if any in this regard; (b) paragraph 6 (ii) - As per clause 19 of the scheme the name of the Transferee Company is proposed to be changed to “Total Oil India Limited”. In this connection Transferee Company may be directed to comply with the provisions of section 20 & 21 read with section 23 of the Companies Act, 1956 in respect of filing of necessary forms with the Registrar of Companies and the proposed new name will be allowed subject to availability of the same, by the Registrar of Companies since under the computerized MCA 21 System of allotting the names, it is systemically not possible to reserve the names. Therefore, the name if available at the time of such application shall be made available by the Registrar of Companies, Mumbai; 4 (c) paragraph 6 (iii) - The Capital Reserve proposed to be created as per para 4.1 of the Scheme amounting Rs.77,70,00,000/- shall not be utilized by the Transferee Company in future for declaring dividend, otherwise it would amount to payment of dividend out of capital of the Transferee Company. In this connection the Transferee Company may be directed to furnish an undertaking in this regard. 4. The Transferee Company has undertaken to comply with the following requirements of the Regional Director, as stated in paragraphs 6(i) to 6(iii) of the Affidavit of the Regional Director to be complied with by the Transferee Company: (a) the Transferee Company shall comply with the requirement of RBI/ FEMA regulations, if any, in this regard; (b) the Transferee Company shall comply with the provisions of section 20 & 21 read with section 23 of the Companies Act, 1956 in respect of filing of necessary forms with the Registrar of Companies for the proposed change of name to “Total Oil India 5 Limited” subject to availability of the same by the Registrar of Companies at the time of filing of such appliction; (c) the Transferee Company shall not, in future, utilize the Capital Reserve proposed to be created as per para 4.1 of the Scheme amounting Rs.77,70,00,000/- for declaring dividend. 5. The Official Liquidator has filed a report stating that the affairs of the Transferor Companies have been conducted in a proper manner and therefore, the Transferor Companies may be ordered to be dissolved. 6. Upon perusal of the entire material placed 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. 7. There is no objection to the Scheme, save and except as stated in paragraph 3 and 4 hereinabove. Since all the requisite statutory compliances have been fulfilled, Company Petition No.797 of 2009 filed by Total Lubricants India Limited, one of the Transferor 6 Company, is made absolute in terms of prayers (a) to (f); Company Petition No.798 of 2009 filed by Total Petroleum India Private Limited, the other Transferor Company, is made absolute in terms of prayers (a) to (g) and Company Petition No.796 of 2009 filed by Total LPG India Limited, the Transferee Company, is made absolute in terms of prayers (a) to (f). 8. The Transferor Companies to lodge a copy of this Order and the Scheme duly authenticated by the Company Registrar, High Court, Bombay with the concerned Superintendent of Stamps for the purpose of adjudication of stamp duty payable, if any, on the same within 30 days from the date of the order. 9. The Petitioners to pay costs of Rs.7,500/- each to the Regional Director. The Transferor Companies to pay Rs.7,500/- each to the Official Liquidator. Costs to be paid within four weeks from today. 10. Filing and issuance of the drawn up Order is dispensed with. 7 11. All authorities concerned to act on a copy of this Order along with the Scheme duly authenticated by the Company Registrar, High Court, Bombay. (DR. D. Y. CHANDRACHUD J.) 8