IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.603 OF 2009 CONNECTED WITH COMPANY APPLICATION NO.584 OF 2009 FUTURE CAPITAL CREDIT LIMITED …………Petitioner / Transferor Company. COMPANY PETITION NO.604 OF 2009 CONNECTED WITH COMPANY APPLICATION NO.585 OF 2009 FUTURE CAPITAL HOLDINGS LIMITED …………Petitioner / Demerged Company COMPANY PETITION NO.605 OF 2009 CONNECTED WITH COMPANY APPLICATION NO.586 OF 2009 FUTURE CAPITAL FINANCIAL SERVICES LIMITED ………Petitioner / Transferee /Resulting Company In the matter of Sections 391 to 394 the Companies Act, 1956. AND In the matter of composite Scheme of Amalgamation and Arrangement between Future Capital Credit Limited (‘FCC’ or ‘the Transferor Company’) and Future Capital Holdings Limited (‘FCH’ or ‘the Demerged Company’) and Future Capital Financial Services Limited (‘FCFS’ or ‘the Resulting Company’ or ‘the Transferee Company’) and Their Respective Shareholders and Creditors 2 Mr. Rajesh Shah i/b Rajesh Shah & Co., for the Petitioners. Mr. P. Ramarao, Official Liquidator, in Company Petition No.603 of 2009 Mr. M. S. Bhardwaj i/b Mr. S.K. Mohapatra for Regional Director in all the Petitions. CORAM: S. J. Kathawalla, J. DATE: 2nd September, 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 composite Scheme of Amalgamation and Arrangement between Future Capital Credit Limited, the Transferor Company and Future Capital Holdings Limited, the Demerged Company and Future Capital Financial Services Limited, which is the Transferee as well as the Resulting Company and their Respective Shareholders and Creditors. 3 3. Counsel appearing on behalf of the Petitioners 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 also undertake to comply with all statutory requirements, if any, as required under the Companies Act, 1956 and the Rules made there under. 4. The Regional Director has filed his Affidavit stating therein that save and except as stated in paragraph 6(a) and 6(b), that the scheme is not prejudicial to the interest of shareholders and public. In paragraph 6 of the said Affidavit, the Regional Director has drawn attention to the annexure of affidavit filed by the Demerged Company as per which the Statutory Auditors mistook a loan made by the Company to a Loan in violation of Section 295. The Demerged Company has informed the Directorate that the concerned director was not a common director in the entities at the time of making the loan and furnished all necessary information vide its letter dated 07/08/2009. In 4 view thereof, the Company is thus stating that Section 295 is not attracted. The Regional Director has also drawn attention of this court to certain facts inter-alia stating that certain reporting in the Director’s Report read with the Annual Report for 2006/2007 go to suggest a selective omission of the material facts about one of the director’s resignation and reappointment. It is further stated that, it appears that the Company is liable for contravention of Section 217(1)(a) read with section 628 in respect of its directors’ report dated 6th July, 2007. Therefore, the Regional Director has advised Registrar of Companies, Mumbai to issue show cause notice and to file a report with his observations. The Affidavit further states that the said facts are for the information of this Court since the Demerged Company is a listed Company. 5. In reply to the aforesaid observations of the Regional Director, the Demerged Company has filed an additional affidavit dated 26th August, 2009 of Mr. Rajesh J Doshi, Sr. Vice President and Company Secretary of the Demerged 5 Company. The Demerged Company submits that it has complied with all the statutory requirements of intimating the Registrar of Companies of the changes in respect of the concerned director’s resignation and reappointment as required under the Companies Act, 1956. Further, the Demerged Company has inter-alia stated that it is a generally accepted practice that the list of directors presented in an annual report is a list of directors of the company as on the date of approval of the annual report and not of directors as during the year. 6. The Counsel for Petitioner Company submits that, without prejudice, if the act has any consequences and the ROC initiates proceedings in appropriate and competent court, the Director of the Company would defend the same or seek appropriate relief therein. It is not stated and there is nothing to suggest that the alleged contraventions are detrimental to the Scheme as such and thus the sanction be granted to the proposed scheme. 6 7. The Official Liquidator has filed his report in Company Petition No.603 of 2009 stating therein that the affairs of the Transferor Company have been conducted in a proper manner and that the Transferor Company may be ordered to be dissolved without winding up of the Company. 8. Upon perusal of the entire material placed on records, the Scheme appears to be fair and reasonable and is not violative of any provisions of law and is not contrary to any public policy. None of the parties concerned has come forward to oppose the Scheme. Moreover, the Regional Director has stated that the Scheme as proposed is not prejudicial to the interest of shareholders, creditors and the public and the Official Liquidator has stated that the affairs of the Transferor Company have been conducted in a proper manner. 9. There is no objection to the Scheme, save and except as stated in paragraph 4 and 5 hereinabove and since all the requisite statutory compliances have been fulfilled, 7 Company Petition Nos.603 of 2009 to 605 of 2009 filed by the Petitioner Companies are made absolute in terms of prayer (a) to (d) of the respective petitions, however the Regional Director/Registrar of Companies is at liberty to adopt necessary action in accordance with Law against the Petitioner Company for the aforesaid violations and the Director of the Company can defend the same or seek appropriate relief therein. 10. 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 30 days from the date of the order. 11. The Petitioners in all the Company Petitions to pay cost of Rs.7,500/- each to the Regional Director and the Petitioner in the Company Petition No.603 of 2009 filed by the Transferor Company to pay cost of Rs.7,500/- to the 8 Official Liquidator. Costs to be paid within four weeks from today. 12. Filing and issuance of the drawn up order is dispensed with. 13. All concerned authorities to act on a copy of this order along with Scheme duly authenticated by the Company Registrar, High Court, Bombay. (S. J. Kathawalla, J.) 9