IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO. 908 OF 2009 CONNECTED WITH COMPANY APPLICATION NO. 963 OF 2009 SUMMIT SECURITIES LIMITED …………Petitioner / First Transferor Company. COMPANY PETITION NO. 909 OF 2009 CONNECTED WITH COMPANY APPLICATION NO. 964 OF 2009 BRABOURNE ENTERPRISES LIMITED …………Petitioner / Second Transferor Company COMPANY PETITION NO. 910 OF 2009 CONNECTED WITH COMPANY APPLICATION NO. 965 OF 2009 OCTAV INVESTMENTS LIMITED ………Petitioner / Third Transferor Company COMPANY PETITION NO. 911 OF 2009 CONNECTED WITH COMPANY APPLICATION NO. 966 OF 2009 CHI INVESTMENTS LIMITED ………Petitioner / Fourth Transferor Company COMPANY PETITION NO. 912 OF 2009 CONNECTED WITH COMPANY APPLICATION NO. 967 OF 2009 RPG ITOCHU FINANCE LIMITED ………Petitioner / First Transferee Company COMPANY PETITION NO. 913 OF 2009 CONNECTED WITH COMPANY APPLICATION NO. 968 OF 2009 INSTANT HOLDINGS LIMITED ………Petitioner / Fifth Transferor Company 2 COMPANY PETITION NO. 914 OF 2009 CONNECTED WITH COMPANY APPLICATION NO. 969 OF 2009 KEC HOLDINGS LIMITED ………Petitioner / Second Transferee Company In the matter of Sections 391 to 394 of the Companies Act, 1956. AND In the matter of Scheme of Arrangement between Summit Securities Limited (“the First Transferor Company”) and Brabourne Enterprises Limited (“the Second Transferor Company”) and Octav Investments Limited (“the Third Transferor Company”) and CHI Investments Limited (“the Fourth Transferor Company”) and RPG Itochu Finance Limited (“the First Transferee Company”) and Instant Holdings Limited (“the Fifth Transferor Company”) and KEC Holdings Limited (“the Second Transferee Company”) 3 and Their Respective Shareholders Mr. Rajesh Shah i/b Rajesh Shah & Co., for the Petitioners. Mr. P. Ramarao, Official Liquidator, in Company Petitions No. 908 of 2009 to 911 of 2009 and 913 of 2009 Mr.M. S. Bhardwaj and Suresh Kumar i/b Mr. S.K. Mohapatra for Regional Director in all the Petitions. CORAM: Dr. D. Y. Chandrachud, J. DATE: 18th December, 2009 PC: 1. Heard learned counsels 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 Arrangement between Summit Securities Limited (“Summit”) and Brabourne Enterprises Limited (“Brabourne”) and Octav Investments Limited (“Octav”) and CHI Investments Limited (“CHI”) and RPG Itochu Finance Limited (“RIFL”) and Instant Holdings Limited (“Instant”) and KEC Holdings Limited (“KEC Holdings”) and their Respective Shareholders. 4 3. Counsel appearing on behalf of the Petitioner Companies has stated that they have complied with all requirements as per the directions of this Court and they have filed necessary affidavits of compliance in the Court. Moreover, the Petitioner Companies undertake to comply with all statutory requirements, if any, as required under the Companies Act, 1956 and the Rules made there under. The undertaking is accepted. 4. The Regional Director (‘RD’) has filed an affidavit in the above petitions stating that save and except as stated in paragraph 6 thereof the Scheme does not appear to be prejudicial to the interest of shareholders and public. 5. In Paragraph 6 of the affidavit, the Regional Director submits that :- (i) “All the Petitioner Companies are Non Banking Finance Companies, hence all the Petitioner Companies may be directed to file a copy of the scheme along with the copy of this Hon’ble Court’s Order within 30 5 day’s from the date of the order, with the RBI. (ii) As per clause 13 of the scheme the name of the First Transferee Company (RIFL) is proposed to be changed to “Summit Securities Limited”. Also as per clause 24 of the scheme the name of the Second Transferee Company (KEC) is proposed to be changed to “Instant Holdings Limited”. In this connection the First and Second Transferee Companies 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 filing of such application, shall be made available by the Registrat of Companies, Mumbai. (iii) The present scheme of arrangement is in the nature of amalgamation which discloses in Part B as merger of Summit Securities, Brabourne Enterprises Limited, Octav Investments Limited and CHI Investments Limited with RPG Itochu Finance Limited. Part C of the scheme deals with a merger of Instant Holdings Limited with KEC Holdings Limited. This consolidated scheme as stated in part B and C are independent in nature and there is no analogy amongst the petitioner companies under Part B & C. 6 Further, if the said scheme is approved and Form No 21 is filed by both the Transferee Company (RPG & KEC) then each will contain details of other Transferee Company in MCA Portal which may lead to confusion in the minds of general public who may visit on the MCA Portal. Hence the petitioner companies be directed accordingly to segregate the two parts which are presented in consolidated form in the present scheme.” 6. The Petitioner Companies have filed the affidavits dated December 17, 2009 and in response to concern raised by the Regional Director in paragraph 6(i) of his Affidavit, have submitted that RPG Itochu Finance Limited and KEC Holdings Limited are registered with RBI as Non Banking Finance Company (‘NBFC’) whereas Summit Securities Limited, Brabourne Enterprises Limited, Octav Investments Limited, CHI Investments Limited and Instant Holdings Limited are not registered with RBI as an NBFC. Accordingly, RPG Itochu Finance Limited and KEC Holdings Limited have given an undertaking to intimate RBI about the merger within a period of One (1) month from the date of receiving the 7 order of Hon’ble High Court of Judicature at Bombay along with a copy of the same. Other Petitioner Companies which are not registered NBFC are not required to intimate RBI. The said undertaking is accepted. 7. Further, in response to the paragraph 6(ii) of the RD affidavit, RPG Itochu Finance Limited and KEC Holdings Limited through aforesaid affidavits have also given an undertaking that they would comply with the requirement of provisions of sections 20 & 21 read with section 23 of the Companies Act, 1956 in respect of filing of the necessary forms with the Registrar of Companies and the proposed new names will be allotted subject to availability of the same, at the time of making such applications, by the Registrar of Companies, Mumbai. The said undertaking is accepted. 8. Further, in response to the paragraph 6(iii) of the RD affidavit, RPG Itochu Finance Limited and KEC Holdings 8 Limited through aforesaid affidavits have submitted that Instant Holdings Limited and KEC Holdings Limited are subsidiaries of Brabourne Enterprises Limited and Summit Securities Limited respectively. The consolidated Scheme provides information about the merger of subsidiaries as well as to the ultimate shareholders (i.e. shareholders of Summit Securities Limited and Brabourne Enterprises Limited). 9. It was further submitted that all the petitioner companies will be filing the Form 21 with the requisite information. The Form 21 to be filed by RPG Itochu Finance Limited for Part B of the Scheme i.e. for merger of Summit Securities Limited, Brabourne Enterprises Limited, Octav Investments Limited and CHI Investments Limited with RPG Itochu Finance Limited, will contain necessary information pertaining to its relevant transferor companies only viz. Summit Securities Limited, Brabourne Enterprises Limited, Octav Investments Limited and CHI Investments Limited. Further, the Form 21 to be filed by the transferor 9 companies for Part B of the Scheme will contain necessary information pertaining to its relevant transferee company and transferor companies. 10. In view of the above submissions made by the Petitioner Companies, the objection raised by the Regional Director in his Report vide point no 6 (iii) of his report is overruled. 11. The Official Liquidator has filed his report in Company Petition Nos. 908 of 2009 to 911 of 2009 and 913 of 2009 stating therein that the affairs of the Transferor Companies, viz, Summit Securities, Brabourne Enterprises Limited, Octav Investments Limited, CHI Investments Limited and Instant Holdings Limited have been conducted in a proper manner and that they may be ordered to be dissolved. 12. 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 10 parties concerned has come forward to oppose the Scheme. 13. Since all the requisite statutory compliances have been fulfilled, Company Petition Nos. 908 of 2009 to 911 of 2009 and 913 of 2009 filed by the Petitioner Companies are made absolute in terms of prayer clauses (a) to (d) and Company Petition Nos. 912 of 2009 and 914 of 2009 filed by the Petitioner Companies is made absolute in terms of prayer clauses (a) to (c). 14. The Petitioner 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 60 days from the date of the Order. 15. The Petitioners in all the Company Petitions to pay costs of Rs.7,500/- each to the Regional Director, Western Region, Mumbai and the Petitioners in the Company Petition Nos. 11 908 of 2009 to 911 of 2009 and 913 of 2009 to pay costs of Rs.7,500/- each to the Official Liquidator, High Court, Bombay. Costs to be paid within four weeks from today. 16. Filing and issuance of the drawn up order is dispensed with. 17. All concerned authorities to act on a copy of this order along with Scheme duly authenticated by the Company Registrar, High Court, Bombay. (Dr. D. Y. Chandrachud. J) 12