IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY SCHEME PETITION NO.280 OF 2011 CONNECTED WITH COMPANY SUMMONS FOR DIRECTION NO.77 OF 2011 JATIA HOTELS AND RESORTS PRIVATE LIMITED .. Petitioner / First Transferor Company AND COMPANY SCHEME PETITION NO.281 OF 2011 CONNECTED WITH COMPANY SUMMONS FOR DIRECTION NO.78 OF 2011 ROYALWAYS TRADING & INVESTMENT SERVICES PRIVATE LIMITED .. Petitioner/Second Transferor Company WITH COMPANY SCHEME PETITION NO.282 OF 2011 CONNECTED WITH COMPANY SUMMONS FOR DIRECTION NO.79 OF 2011 SUPREME HOLDINGS LIMITED …Petitioner / Transferee Company In the matter of the Companies Act 1 of 1956; AND In the matter of Sections 391 to 394 of the Companies Act, 1956; AND In the matter of Scheme of Amalgamation of JATIA HOTELS & RESORTS PRIVATE LIMITED AND ROYALWAYS TRADING & INVESTMENT SERVICES PRIVATE LIMITED with SUPREME HOLDINGS LIMITED. Mr. Rajesh Shah i/b Rajesh Shah & Co., Advocate for the Petitioners in all Petitions. Ms. Purnima Awasthi i/b Dr. T. C. Kaushik for Regional Director in both Petitions. Dr. T. Pandian, Official Liquidator, present in CSP Nos. 280 of 2011 and 281 of 2011 of 2011. 1 CORAM: S. J. Kathawalla, J. DATE: 29th July, 2011. PC: 1. Heard counsel for the parties. 2. The sanction of the Court is sought under Sections 391 to 394 read with Sections100 to 103 of the Companies Act, 1956, to a Scheme of Amalgamation of JATIA HOTELS AND RESORTS PRIVATE LIMITED and ROYALWAYS TRADING AND INVESTMENT SERVICES PRIVATE LIMITED with SUPREME HOLDINGS LIMITED. 3. Counsel appearing on behalf of the Petitioners 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 Companies undertake 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 paragraphs 6(a) to 6(c) of the said Affidavit, it appears that the scheme is not prejudicial to the interest of shareholders and public. In paragraph 6 of the said Affidavit, it is stated that:- “6(a) the Second Transferor Company and Transferee Company are a Non Banking Finance Companies. Hence the Second Transferor Company and Transferee Company may be directed to file a copy of the scheme along with the copy of 2 this Hon’ble Court’s order within 30 day’s from the date of the order, with the RBI. (b) As per clause 9 of the scheme the name of the Transferee Company is proposed to be changed to “Supreme Holdings & Hospitality (India) Limited”. In this connection Transferee Company may be directed to comply with the provisions of section 21/23 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 Registrar of Companies, Mumbai. (c) Clause No. 16(e) of the scheme provides for creation of “Amalgamation Reserve Account” by the Transferee Compa- ny and same shall be treated as Free Reserve forming part of net worth of the Transferee Company. In this connection it is respectfully submitted that the said reserve arising out of this scheme shall not be utilized for the purpose of declaring dividend by the Transferee Company.” 5. The Second Transferor Company and the Transferee Company which are Petitioner in CSP Nos. 281 of 2011 and 282 of 2011 tendered their respective Affidavits dated 16th June, 2011 in reply to the queries raised by the Regional Director in his Affidavits. The said Affidavits are taken on record. 6. As far as the content of paragraph 6(a) of the Affidavit of the Regional Director is concerned, the Transferee Company at paragraph 3 3 of its Affidavit states that the Transferee Company was earlier engaged in the business of leasing, finance and investment activities and was registered as “Non-Banking Financial Company” with Reserve Bank of India. However, the Petitioner Company, in the Extraordinary General Meeting of its shareholders held on 4th July 2007 has resolved to discontinue the business of Non-Banking Financial Company and commence a new business activity of development and running of hotels and resorts as stated in Clause 49 of its Memorandum of Association. It is further stated that the Reserve Bank of India vide its letter dated November 13, 2007 informed the Transferee Company about the RBI’s order dated November 05, 2007 cancelling the registration of the Transferee Company as a Non-Banking Financial Company. It is also stated that since the Transferee Company is no longer a Non Banking Finance Company, there is no need for any direction to file a copy of the Scheme along with the copy of this order within 30 days from the date of the order with the Reserve Bank of India. 7 In view of aforesaid, the Transferee Company need not file a copy of the Scheme along with the copy of this order with Reserve Bank of India. 8. So far as the Second Transferor Company is concerned, the Second Transferor Company at paragraph no. 5 of its Affidavit states that the Second Transferor Company has not, at any time registered itself as a Non Banking Financial Company with the Reserve Bank of India and till date it has not undertaken any activities of Non Banking 4 Financial Company. However, in the said Affidavit, the Second Transferor Company at paragraph 5 undertakes that within 30 (thirty) days from the date of receipt of the order of this Court sanctioning the Scheme, the Second Transferor Company shall file a copy of the Scheme along with the copy of this Court’s order. The said undertaking is accepted. 9. So far as the second objection is concerned, the Counsel for the Transferee Company has relied upon the order of this Court passed in “YOU Telecom India Private Limited; In Re: YOU Broadband Networks India Private Limited [2007]141CompCas43(Bom)], wherein the learned Judge has held as under: “9. The objection of the Regional Director that the name of the transferee company is to be changed and there- fore a separate compliance with Section 21 in respect of the filing of necessary forms with the Registrar of Com- panies is mandatory, will not survive in view of the law laid down in Vasant Investment and PMP Auto Indus- tries. The furnishing of a notice to the Registrar of the scheme as sanctioned will in any case constitute sub- stantial compliance with the provisions of Section 21. …” 10. In view of the above, the objection raised by the Regional Director in paragraph 6(b) of his Affidavit, inter alia, seeking directions to be given to the Transferee Company to comply with the provisions of Section 21/23 of the Companies Act, 1956 in respect of filing of necessary forms with the Registrar of Companies, will not survive. The 5 Counsel appearing on behalf of the Transferee Company states that the Transferee Company has already applied for the allotment of new name before concerned Registrar of Companies and agrees that the proposed new name will be allowed subject to the availabilities of the same. 11. So far as the objection in paragraph 6(c) of the said Affidavit is concerned, the Transferee Company in its Affidavit has given undertaking that upon the Scheme becoming effective, if any ‘Amalgamation Reserve Account’ is created in the books of the Transferee Company, the Transferee Company shall not utilize the same for the purpose of declaring dividend by it. The said undertaking is accepted. 12 The Official Liquidator has filed a report stating that the affairs of the Transferor Companies have been conducted in a proper manner and that both the Transferor Companies may be ordered to be dissolved. 13. 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. 14. Since all the requisite statutory compliances have been fulfilled, Company Scheme Petition Nos.280 of 2011 and 281 of 2011 filed by the Transferor Companies are made absolute in terms of prayer Clauses (a) to (d) and Company Scheme Petition No.282 of 2011 filed by the Transferee Company is made absolute in terms of prayer Clauses (a) to (c). 6 15. 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 the order. 16 The Petitioner Companies in all Petitions to pay costs of Rs.10,000/- each to the Regional Director, Western Region, Mumbai and Petitioner Company in the Company Scheme Petition Nos.280 of 2011 and 281 of 2011 to pay costs of Rs.10,000/- each to the Official Liquidator, High Court, Bombay. Costs to be paid within four weeks from today. 17. Filing and issuance of the drawn up order is dispensed with. 18. All concerned authorities to act on a copy of this order along with the Scheme duly authenticated by the Company Registrar, High Court, Bombay. (S. J. Kathawalla, J.) 7