- 1 - 37.csp.169.2011 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY SCHEME PETITION NO. 169 OF 2011 CONNECTED WITH COMPANY SUMMONS FOR DIRECTION NO. 42 OF 2011 Reliance Global IDC Limited ..Petitioner/ Transferor Company WITH COMPANY SCHEME PETITION NO. 170 OF 2011 CONNECTED WITH COMPANY SUMMONS FOR DIRECTION NO. 43 OF 2011 Reliance Infratel Limited ..Petitioner/ Transferee Company In the matter of Sections 391 to 394 read with Sections 78 and 100 to 103 of the Companies Act, 1956. AND In the matter of Scheme of Amalgamation of Reliance Global IDC Limited (“the Transferor Company”) WITH Reliance Infratel Limited (“the Transferee Company”) AND their respective shareholders and creditors. Ms.Alpana Ghone and Mr.Rejesh Shah i/b M/s.Rajesh Shah & Co. for the Petitioner in both Petitions. Mr.M.S.Roy for M/s. Pakthra Constructions (Prop.Mr.Saji Mathew) (Objectionist/Creditor) Mr.Abhijeet Mahadeokar i/b Divakar Gond for (M/s.Geodis Overseas Pvt. Ltd.) (India) - 2 - 37.csp.169.2011 Dr.T.Pandian, Official Liquidator present in Company Scheme Petition No. 169 of 2011. Mr.C.J.Roy i/b Mr.H.P.Chaturvedi for Regional Director in both Petitions. .... CORAM : S.J. VAZIFDAR, J. DATE : 6TH MAY 2011. .... P.C. 1 Heard learned counsel for the parties. 2 The sanction of the Court is sought under Sections 391 to 294 read with Sections 78 and 100 to 103 of the Companies Act, 1956, to a Scheme of Amalgamation of Reliance Global IDC Limited, the Transferor Company with Reliance Infratel Limited, the Transferee Company and their respective shareholders and creditors. 3 The learned counsel appearing on behalf of the Petitioner Companies has stated 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 Companies 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. - 3 - 37.csp.169.2011 4 The Regional Director has filed an affidavit stating therein that save and except as stated in paragraphs 6(a) to 6(e) of the said affidavit, it appears that Scheme is not prejudicial to the interest of shareholders and public. 5 The counsel appearing for the Regional Director has drawn my attention to paragraphs 6(a) to 6(e) of the affidavit of the Regional Director in which it is stated that : “(a) The words “or any of its subsidiaries” appearing in clause 1.1.6(b) be deleted. (b) In clause 2.3.7 the adjustment proposed may be restricted to specified period and should not be open ended. (c) In clause 2.3.8 the following words may be added “adjusted pursuant to clause 2.3.7” after the words “the amount of write back of such extraordinary or exceptional items”. (d) The approval of the scheme by the Hon’ble High Court will not effect the statutory auditors in expressing his opinion whether the accounts of the Company are in compliance with the applicable rules and regulations/ (e) The deponent is in receipt of complaint from one of the creditors viz.M/s.A.M.Engineering Company in respect of their dues to the extent of Rs.16,91,115/- against Transferee Company. A copy of the said complaint dated 31/03/2011 of the said complainant is annexed hereto and marked as Exhibit ‘D’. The matters referred to in the complaint is being separately taken up with the company by the Registrar of Companies, Mumbai. This is for the information of this Hon’ble High Court.” - 4 - 37.csp.169.2011 6 In response to the concern raised by the Regional Director in paragraphs 6(a) to 6(c) of his Affidavit, the Counsel seeks leave of this Court to modify Clauses 1.1.6(b), 2.3.7 and 2.3.8 of the Scheme in terms of the Scheduled handed in which is taken on record and is marked ‘X’ for identification. Leave to amend is granted. Amendment to be carried out within two weeks from today. 7 So far as the observation made in paragraph 6(d) of the affidavit of the Regional Director is concerned, it is clarified that the approval of the Scheme by the Court will not affect the Statutory Auditors in expressing his opinion whether the accounts of the Company are in compliance with the applicable rules and regulations and this order. 8 In response to the concern raised by the Regional Director in paragraph 6(e) of his affidavit, the counsel for the Petitioner Companies submits that the said creditor has given its ‘no objection’ vide its letter dated 5.5.2011. A scanned copy of the said no objection letter is tendered in the Court which is taken on record and marked ‘X-1’ for identification. Hence, the said objection does not survive. 9 The Official Liquidator has filed his report in Company Scheme Petition No.169 of 2011 stating therein that the affairs of the - 5 - 37.csp.169.2011 Transferor Company have been conducted in a proper manner and that the Transferor Company may be ordered to be dissolved. 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. 11(A) The creditors of M/s.Geodis Overseas Private Limited (India) had raised an objection. Ms.Ghone, learned counsel appearing on behalf of the Petitioner has tendered a ‘No Dues Certificate’ from this creditor which is taken on record and marked ‘X-2’ (colly.). However, the learned counsel appearing on behalf of the M/s.Geodis Overseas Private Limited (India) states that he has no instructions in this regard. It is clarified that this order has been passed ignoring the claim of this creditor only in view of the ‘No Dues Certificate’ and the letter dated 4th May 2011 annexed thereto. 11B. M/s.Pakthra Constructions has also opposed the scheme only on the ground that the firm has a claim in sum of Rs.57.48 crores against the Petitioner. - 6 - 37.csp.169.2011 Firstly, the mere existence of a claim does not entail a rejection of a scheme. Nothing has been shown which would warrant the scheme being rejected, merely on the ground of a claim being made. To leave no room for grievance, the Petitioner has agreed to deposit an amount of Rs.55 lacs in Court on or before 15th May 2011. This is entirely without prejudice to the Petitioner’s rights and contentions and only to obviate any delay in the scheme being sanctioned. Upon the amount being deposited with the Prothonotary and Senior Master on or before 31st May 2011,, the creditor is at liberty to apply to the concerned Court in respect of the said amount. However, in the event of no orders being obtained in respect of the said amount, from any Court or Tribunal of competent jurisdiction on or before 30th June 2011, the Petitioner shall be at liberty to forthwith withdraw the same without further reference to Court. The proposed cheque to be deposited in the name of the Prothonotary & Senior Master, Original Side. Ms.Ghone, the learned counsel appearing on behalf of the Petitioner further states that other creditors also objected to the scheme being sanctioned and requested for the papers, the papers and proceedings have furnished to those persons who had asked for the same. No other person has appeared and objected for the scheme being - 7 - 37.csp.169.2011 sanctioned. 12 Since all the requisite statutory compliances have been fulfilled, Company Scheme Petition No.169 of 2011 and Company Scheme Petition No.170 of 2011 filed by the Transferor Company and the Transferee Company respectively are made absolute in terms of prayer clauses (a) to (d) of the respective Petitions. 13 The Petitioner Companies 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 adjudication of stamp duty payable, if any, on the same within 60 days from the date of this Order. 14 The Petitioners in both the Company Scheme Petitions to pay costs of Rs.10,000/- each to the Regional Director, Western Region, Mumbai and the Petitioner in the Company Scheme Petition No.169 of 2011 to pay costs of Rs.10,000/- to the Official Liquidator, High Court, Bombay. Costs to be paid within four weeks from today. 15 Filing and issuance of the drawn up order is dispensed with. - 8 - 37.csp.169.2011 16 All concerned authorities to act on a copy of this order along with Scheme duly authenticated by the Company Registrar, High Court, Bombay. -