CSP 408-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY SCHEME PETITION NO. 408 OF 2010. CONNECTED WITH COMPANY SUMMONS FOR DIRECTION NO. 462 OF 2010. ADVENTITY GLOBAL SERVICES PRIVATE LIMITED ………Petitioner / Transferor / Demerged Company. In the matter of the Companies Act 1 of 1956; AND In the matter of Sections 391 to 394 and Sections 78, 100 to 105 of the Companies Act, 1956; AND In the matter of Scheme of Arrange- ment between Adventity Global Ser- vices Private Limited (the De- merged Company) and Suther- land Global Services Private Limit- ed (the Resulting Company) and their respective shareholders and Creditors Ms. Alpana Ghone a/w Mr. Rajesh Shah i/b Rajesh Shah & Co., Advocates for the Petitioner. Mr. Ashish Agarwal i/b Mr. S.K. Mohapatra for Regional Director. Mr. Y. V. Divekar i/by Divekar & Co. for the Transitional Documents (India) Pvt. Ltd. CORAM: S. J. KATHAWALLA, J. DATE: 17th September, 2010. PC: 1. Heard learned counsel for the parties. 2. The sanction of the Court is sought under Sections 391 to 394 of the Companies Act, 1956, to the Scheme of 1 CSP 408-10 Arrangement between Adventity Global Services Private Limited (the Transferor / Demerged Company) and Sutherland Global Services Private Limited (the Resulting Company) and their respective shareholders and creditors. The Scheme provides for the demerger of ‘Export Business Undertaking’ of Adventity Global Services Private Limited into Sutherland Global Services Private Limited. 3. Counsel appearing on behalf of the Petitioner states that they have complied with all requirements as per directions of this Court and they have 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. The undertaking is accepted. 4. The Regional Director has filed an Affidavit stating therein that save and except as stated in para 6(a) & (b) of the Affidavit, the Scheme does not appear to be prejudicial to the interest of shareholders and public. Paragraph 6 of the Affidavit reads as under:- “6. That the Deponent further submits that:- (a) It appears from the Auditors Report attached to the Balance Sheet as at 31/03/2009 of the Demerged Company, that the statutory auditor has made qualifications in his audit report which has not been explained / commented by the Directors of the Company in their Director Report, which is in violation of section 217(3) of the Companies Act, 1956. Further the company has violated the provisions of section 211 read with Accounting Standard – 11. The Registrar of Companies, Mumbai has been directed to initiate necessary penal action against the 2 CSP 408-10 company and its directors in this regard. In view of the above liberty may be granted to the Regional Director/Registrar of Companies to initiate the necessary penal action against the Demerged Company and its Directors in respect of above said violations. (b) The Registered Office of the Transferee Company is situated in the State of Tamil Nadu at Chennai. Hence, the Transferee Company has to file similar petition before the Hon’ble High Court of Tamil Nadu at Chennai for approving the said Scheme.” 5. Mr. Rajesh Mundra, CFO and Company Secretary of the Petitioner Company has filed his affidavit dated 15th September, 2010 in reply to the queries raised by the Regional Director in his Affidavit. 6. So far as the query raised by the Regional Director in paragraph 6(a) of his affidavit is concerned, it is stated that the Petitioner Company has already filed an application with the office of the Registrar of Companies, Mumbai, for compounding of offence for violation of Section 217(3) and Section 211 of the Companies Act, 1956 read with Accounting Standard – 11. Further, the Counsel for the Petitioner submits that the above violations are technical in nature and does not affect the proposed Scheme of Arrangement and that the Petitioner Company has otherwise complied with the relevant statutory provisions of the Companies Act, 1956. The said statement is accepted. The Counsel further submits that none of the alleged violation referred to by the Regional Director have any bearing whatsoever on the Scheme and hence the said violation do not come in the way of the Scheme being sanctioned by the Court. The Counsel also states that it is always open to the 3 CSP 408-10 Regional Director to adopt such proceedings in accordance with law with regard to the said violations against the Petitioner Company and its Directors even after the scheme is sanctioned by this Court and that the Petitioner Company has no objection to liberty being reserved to the Regional Director subject to the Petitioner Company’s rights to defend such proceedings in accordance with law and that if any such proceedings are adopted against the Petitioner Company, the same can be and may be continued against the said Company pursuant to the relevant provisions of the Act. 7. So far as paragraph 6(b) of the Affidavit of Regional Director is concerned, it is stated in the said affidavit that the Transferee Company has filed similar Petition before the High Court of Tamil Nadu at Chennai for approving the said Scheme and that the said Petition is still pending for final hearing. 8. There are no other objections raised by the Regional Director. In view of the above explanation, the Regional Director does not have any objection to the Scheme being sanctioned. 9. Mr. Divekar, Learned Counsel appearing for M/s Transitional Document (India) Pvt. Ltd., submit that his client has provided certain services to the Petitioner Company and that his client has filed a Suit against the Petitioner Company to recover Rs. 47,20,493/- towards the BPO service charges and an amount of Rs.2.19 crores towards damages. The learned Advocate appearing for the Petitioner Company has submitted that the entire claim of M/s. Transitional Documents (India) Pvt. Ltd., is baseless 4 CSP 408-10 and untenable. M/s. Transitional Documents (India) Pvt. Ltd. has earlier entered into correspondence with the Petitioner Company in this regard and the Petitioner Company has denied and disputed the alleged claim. It is further submitted that the Petitioner Company is not aware of any Suit filed by M/s. Transitional Documents (India) Pvt. Ltd. against them. It is submitted that the assets of the Petitioner Company prior to the demerger are to the tune of Rs. 189,55,86,457/- and post demerger would be Rs. 169,43,41,362/-. In view thereof, M/s. Transitional Documents (India) Pvt. Ltd. cannot be heard to say that if a decree is ultimately passed in its favour, it will not be able to realize the amount from the Petitioner Company. In view thereof, I see no substance in the objection raised on behalf of M/s. Transitional Documents (India) Pvt. Ltd. and the same is rejected. 10.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 save and except hereinabove. 11. Since all the requisite statutory compliances have been fulfilled, Company Petition is made absolute in terms of prayer clauses (a) to (c). The scheme is sanctioned subject to the order to be passed by the High Court of Tamil Nadu at Chennai in the Petition filed by the Resulting Company. 12. The Petitioner Company to lodge a copy of this order and the Scheme duly authenticated by the Company Registrar, High Court, (O.S.) Bombay, with the concerned 5 CSP 408-10 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. 13.The Petitioner Company to pay costs of Rs.10,000/- to the Regional Director, Western Region, Mumbai. Costs to be paid within four weeks from today. 14.Filing and issuance of the drawn up order is dispensed with. 15.All concerned authorities to act on a copy of this order alongwith the Scheme duly authenticated by the Company Registrar, High Court, Bombay. (S. J. KATHAWALLA, J.) 6