1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.960 OF 2007 CONNECTED WITH COMPANY APPLICATION NO.1190 OF 2007 Prime Skyline Developers Pvt.Ltd. ..Petitioner. Mr.Shyam Mehta i/b. Malvi Ranchoddas & Co. for Petitioner. Mr.C.J.Joy with Mr.N.D.Sharma i/b. S.K.Mohapatra for Regional Director. Mr.S.Ramakantha, Dy. O.L. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 7, 2008. DATE : MARCH 7, 2008. DATE : MARCH 7, 2008. P.C. : P.C. : P.C. : 1. The only objections taken on behalf of the Regional Director is that the transferee company will have to file separate application before the Gujarat High Court for similar relief, as the said Company is located within the jurisdiction of Gujarat High Court. This objection has been refuted by the Petitioner, placing reliance on the decision of our High Court in the case of Bank of India V/s. Bank of India V/s. Bank of India V/s. Ahmedabad Mfg. & Calico Printing Co. (1972) 42 Ahmedabad Mfg. & Calico Printing Co. (1972) 42 Ahmedabad Mfg. & Calico Printing Co. (1972) 42 Company Cases 211. Company Cases 211. Company Cases 211. This very plea was raised and considered in the said decision at page 216. The Court has reproduced the argument of the Central Government that an application under Section 391 and 2 394 of the Companies Act by the transferee company to the Gujarat High Court within the jurisdiction of which it has its registered office is also necessary. On analysing the relevant decision and the provisions as applicable, the said plea has been rejected, as can be discerned from the exposition at page 219 of the reported decision. The Court observes thus: "Dealing with his first argument, in my opinion, in the case of the transfer of its undertaking, property and liabilities by one company to another, the transaction may or may not affect the rights of its members or creditors. If, however, it does affect the rights of its members or creditors, either because it involved a reorganisation of its share capital or otherwise, it would certainly fall within the term "arrangement" and, in that event, proceedings by the transferee company in the appropriate court under sections 391 and 394 would be necessary. It must follow that, if a scheme by way of transfer of undertaking does not affect the rights of the members or creditors of the transferee company, as between themselves and the company, or does not involve a reorganisation of the share capital of the transferee company, no application by the transferee company under section 391 or section 394 would be necessary. This, in my opinion, is the clear position as it emerges on a careful analysis of the relevant statutory provisions. This view which I have taken derives support from the decision of a single judge of the Calcutta High Court in the case of In the matter of Carron Tea Co. In the matter of Carron Tea Co. In the matter of Carron Tea Co. Ltd." Ltd." Ltd." In the present case, there is no dispute that the transfer of undertaking would not affect the rights of the members or creditors of the transferee 3 company, as between themselves and the Company or does not involve a reorganisation of the share capital of the transferee company. If so, objection is squarely answered by the decision pressed into service on behalf of the Petitioner. Accordingly, the same is overruled. 2. In the circumstances, Order in terms of Minutes of the Order. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)