IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Company Petition No. 15 of 2008 Date of Decision: 8th April, 2009 In the matter of : Kasinka India Pvt. Limited Petitioner No.1/ transferor Company And Greka Precision tools & Dies Pvt. Ltd. Petitioner No.2/ transferor Company And Biodeal Pharmaceuticals Pvt. Ltd. Petitioner No.3/transferee company Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? For the petitioners: Mr.Pankaj Sharma, Advocate. Sanjay Karol, J. (Oral) This petition has been filed by M/s Kasinka India Private Limited (hereinafter referred to petitioner No.1); Greka Precision Tools & Dies Private Limited (hereinafter to petitioner No.2) both being transferor companies and Biodeal Pharmaceuticals Private Limited (hereinafter referred to petitioner No.3) being the transferee company. The petitioners have approached this Court under Sections 391(1), 392 and 393 of the Companies Act, 1956 (hereinafter referred to as the Act) read with Rules, 6,9,67, 69 of the Companies (Court) Rules, 1959 (hereinafter referred to as the Rules) with the prayer that the meeting of the Whether the reporters of Local Papers are allowed to see the Judgment? 2 shareholders as well as the meeting of all classes of creditors of the petitioners and publication of the notices be dispensed with. Consequent upon such an order being passed, permission be granted to the petitioners - companies to file a petition under Section 391/394 of the Act read with relevant Rules for sanctioning the Scheme of amalgamation/ merger, within seven days from the receipt of the order passed by the Court. Petitioner No.1 M/s Kasinka India Pvt. Limited was incorporated on 31st December, 1976. Its authorized share capital is Rs.5,00,000/- divided into 5,000 equity shares of Rs.100/- each. Its issued, subscribed and paid-up share capital is Rs.3,20,000/- divided into 3200 equity shares of Rs.100/- each fully paid. The share holding in the company of each individual is as under:- Sl.No. Name No. of Shares Percentage 1. Mr.Thobhanbhai K.Patel 425 13.28 2. Mr.Jamnadas K.Patel 430 13.44 3. Mr.Ravjibhai K.Patel 425 13.28 4. Mr.Parshottambhai M.Nadpara 320 10.00 5. Mr.Amratlal M.Nadpara 320 10.00 6. Mr.Girdharbhai M.Nadpara 320 05.00 7. Mr.Vallabhbhai R.Vaishnav 160 10.00 8. Mr.Popatbhai N.Patel 230 07.19 9. Mr.Chandrakantbhai P.Patel 190 07.19 10. Mr.Nitinbhai P.Patel 190 05.94 11. Mr.Deepakbhai P.Patel 190 05.95 Total 3,200 100.00 The Directors of the Company are as under:- S.No. Name 1. Mr.Thobanbhai K.Patel 2. Mr.Nittanbhai P.Patel 3. Mr.Hemang Dhiraj Lal Kansagra As per the averments made in the petition as on 31.3.2007, there are no secured and unsecured creditors of the company. The 3 Company has its registered office at Village Saini Majra, Nalagarh-Ropar Road, Tehsil Nalagarh, Distt. Solan (HP). The main object of the company, as per the memorandum of association is to manufacture, buy sell, import, export, distribute and exchange tools, steel products, machinery rolling stocks and hardware of all kinds, rolling of ferrous and non-ferrous metals, steel castings, foundry, steel structures and implements of all kinds and general engineering goods. Petitioner No.2, M/s Greka Precision Tools and Dies Private Limited was incorporated on 8th April, 1980. Its authorized share capital is Rs.1,00,00,000/- divided into 1,00,000 equity shares of Rs.100/- each. Its issued, subscribed and paid-up share capital is Rs.80,00,000/- divided into 80,000 equity shares of Rs.100/- each. The share holding in the company of each individual is as under:- Sl.No. Name No. of Shares Percentage 1. Mr.Thobhanbhai K.Patel 10400 13.00 2. Mr.Jamnadas K.Patel 11200 14.00 3. Mr.Ravjibhai K.Patel 10400 13.00 4. Mr.Parshottambhai M.Nadpara 8000 10.00 5. Mr.Amrutlal M.Nadpara 8000 10.00 6. Mr.Girdharbhai M.Nadpara 8000 10.00 7. Mr.Vallabhbhai R.Vaishnav 4000 05.00 8. Mr.Popatbhai N.Patel 5600 07.00 9. Mr.Chandrakantbhai P.Patel 4800 06.00 10. Mr.Nitinbhai P.Patel 4800 06.00 11. Mr.Deepakbhai P.Patel 4800 06.00 Total 80,000 100.00 The Directors of the Company are as under:- S.No. Name 1. Mr.Thobanbhai K.Patel 2. Mr.Nittanbhai P.Patel 3. Mr.Hemang Dhiraj Lal Kansagra 4 As per the averments made in the petition as on 31.3.2007, the Company has one secured creditor, namely, State Bank of Patiala and one unsecured creditor, namely, the transferee company-petitioner No.3. Its registered office is at Village Saini Majra, Nalagarh-Ropar Road, Tehsil Nalagarh, Distt. Solan (HP). The main object of the company, as per the memorandum and Article of Association is to manufacture and deal in export of metals. The business is some what similar to that of petitioner No.1- company. Petitioner No.3, M/s Biodeal Pharmaceuticals Private Limited was incorporated on 30th December, 2005. Its authorized share capital is Rs.5,00,00,000/- divided into 10,00,000 equity shares of Rs.50/- each. Its issued, subscribed and paid-up share capital is Rs.1,00,00,000/- divided into 10,00,000 equity shares of Rs.10/- each. The share holding in the company of each individual is as under:- Sl.No. Name No. of Shares Percentage 1. Mr. Popatlal Patel 90,000 09.00 2. Mr. Chandrakant Patel 70,000 07.00 3. Mr. Nitin Patell 70,000 07.00 4. Mr. Dipak Patel 70,000 07.00 5. Mr. Kishor Kansagra 8,300 00.83 6. Mr. Atul Kansagra 8,300 00.83 7. Mr. Bipin Kansagra 8,400 00.84 8. Mr. Chetan Kansagra 12,500 01.25 9. Mr. Manish Kansagra 12,500 01.25 10. Mr. Hemang Kansagra 25,000 02.50 11. Mr.Nishant Kansagra 25,000 02.50 12. Mr. Ashwin Kansagra 25,000 02.50 13. Ankit Kansagra 25,000 02.50 14. N.K.Juneja 10,0000 10.00 15. Biodeal Laboratories Pvt. Ltd. 45,0000 45.00 Total 10,00,000 100.00 The Directors of the Company are as under:- S.No. Name 1. Mr.Thobanbhai K.Patel 2. Mr.Nittanbhai P.Patel 3. Mr.Hemang Dhiraj Lal Kansagra 5 As per the averments made in the petition as on 31.3.2007, the Company has seven secured creditor and 147 unsecured creditors. Its registered office is at Village Saini Majra, Nalagarh-Ropar Road, Tehsil Nalagarh, Distt. Solan (HP). The main object of the company is to manufacture, market and deal in pharmaceuticals. As per the memorandum of association the Company can also carry out the business of manufacture processing and reprocessing of minerals. It is evident that the transferor companies are closely held family companies and the Directors are also family members. Similarly, the transferee company is also a closely held family concern of the Directors. All the three directors of the companies are common. The registered office of the transferee company is also at the same place. There is communality of the Board of Directors of the transferor companies and the transferee company. The financial position of the companies is enumerated in balance sheets annexed to the petition. It is so reflected that the financial position of the companies is sound and the assets are in excess of the total liabilities. The proposal to amalgamate the transferor companies with the transferee company is made to be effective from the date as defined in Clause 2(d) of the Scheme. The transferor and transferee companies have placed on record the consent letters of all the share holders which are Annexure P-7, P-10 and P-15 respectively, consent letters of secured and unsecured creditors of petitioner No.2 company are Annexures P-11 and P-12, respectively and consent letters of secured and unsecured creditors of petitioner No.3 are Annexures P-17 and P-19, respectively. 6 None of the share holders, creditors – secured and unsecured have any objection to the amalgamation in accordance with the Scheme formulated by the Companies. No objection certificate is already on record. In the petition, notices were also issued to all the share holder, secured and unsecured creditors of the petitioners companies. Even here none has come forward to raise any objection. The resolutions of the companies accepting in principal the merger has also been filed. It is so stated that the Scheme of amalgamation shall not adversely affect the interest of the creditors and share holders. The averments are made that it would be more profitable for the companies to work after amalgamation. The justification for amalgamation is borne out from the following factors:- (i) The companies are closely held and managed by family members; (ii) they have common share holders and common Directors; (iii) they are situated at the same place; (iv) the factories/works are also at the same place (v) the transferor companies hold 6.5 acres of idle land which would give an opportunity of expansion to the transferee company; (vi) the transferee company which has got two wings of pharmaceuticals and engineering shall be able to expand further; (vii) the consolidation of business would enable the companies to optimize their synergies and (viii) it shall lead to further expansion and growth which shall be in the interest of the company and its share holders. In my view, the interest of the share holders and the creditors has been adequately protected and I am satisfied from the material on 7 record that the prayer of the petitioners requires to be granted. It is accordingly directed that:- (a) The meeting of the equity shareholders of the transferor and transferee companies to consider and approve the Scheme of Amalgamation is dispensed with. (b) The meeting of the unsecured creditors and secured creditors is also dispensed with considering that there is a consent of merger on behalf of the said secured and unsecured creditors to the Scheme; (c) As a consequence of the two directions being issued, it is also directed that there will be no need to issue publication of notices in the newspapers etc. (d) Permission is accorded to the transferee company to move for sanctioning of the Scheme of Amalgamation, within a statutory period. The petition is disposed of accordingly. Coy. Application No. 53 of 2008 In view of the order passed in the main petition, learned counsel for the petitioners does not press this application. The application is disposed of accordingly. 8th April, 2009 (Sanjay Karol) (C) Judge. 8