IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY SCHEME PETITION NO 463 OF 2011 CONNECTED WITH COMPANY SUMMONS FOR DIRECTION NO 333 OF 2011 Shivam Paints Private Limited……..Petitioner/First Transferor Company AND COMPANY SCHEME PETITION NO 464 OF 2011 CONNECTED WITH COMPANY SUMMONS FOR DIRECTION NO 334 OF 2011 Vijay Rolling Mills …….Petitioner/Second Transferor Company AND COMPANY SCHEME PETITION NO 465 OF 2011 CONNECTED WITH COMPANY SUMMONS FOR DIRECTION NO 335 OF 2011 VRM Metazine Private Limited…..Petitioner/Transferee Company In the matter of the Companies Act, 1956 (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 Shivam Paints Private Limited AND Vijay Rolling Mills WITH VRM Metazine Private Limited AND their Respective shareholders/Partners Mr. Hemant Sethi i/b Hemant Sethi & Co., Advocates for the Petitioner in all Petitions. Mrs. R.T. Sutar, Asstt. Official Liquidator, present in Company Scheme Petition No 463 of 2011. Mr. Chetan Agrawal for Objectionist. Mr. C.J. Joy i/b Mr. H. P. Chaturvedi for Regional Director in all the Petitions . CORAM: S.C. DHARMADHIKARI, J DATE: 25TH NOVEMBER 2011 P.C 1 1. Heard learned counsel for the parties. 2. The sanction of the Court is sought under Sections 391 to 394 of Companies Act, 1956 to a Scheme of Amalgamation of Shivam Paints Private Limited and Vijay Rolling Mills with VRM Metazine Private Limited and their respective shareholders. 3. Counsel appearing on behalf of the Petitioners has stated that the Petitioners have complied with all requirements as per directions of this Court and they have filed necessary Affidavits of compliance in the Court. Moreover, Petitioner undertakes to comply with all statutory requirements, if any, as required under the Companies Act, 1956 and the rules made there under. The said undertaking is accepted. 4. The Official Liquidator has filed his report in Company Scheme Petition Nos. 463 of 2011 stating therein that the affairs of Petitioner/First Transferor Company has been conducted in a proper manner and that the Petitioner/First Transferor Company may be ordered to be dissolved. 5. The Regional Director has filed an affidavit stating therein that save and except as stated in paragraphs 6(a) and 6(b) of the said affidavit, it appears that the Scheme is not prejudicial to the interest of shareholders and public. In paragraph 6(a) and (b) of the said Affidavit, the Regional Director has stated that: (a) Clause 21.1 and 21.2 of the scheme needs to be corrected suitably stating therein “Transferor Company No.2” instead of Transferor Company No.5” wherever occurs in the said clauses. (b) Clause 9.6 of the Scheme states that all such amounts to the credit of the ”Amalgamation Reserve Account” shall constitute the Transferee Company’s free reserves available for distribution. In this connections it is 2 submitted that the reserve created pursuant to this scheme is a amalgamation reserve and is not out of the profits Transferee Company and shall not be utilized for declaration of dividend by the Transferee Company.” 6. As far as the observations in paragraph 6(a) of the Affidavit of Regional Director is concerned, the Counsel appearing on behalf of the Petitioner Companies states that the errors pointed out by the Regional Director are typographic errors . The Counsel, therefore, seeks leave of this Court to amend and substitute clause 21.1 and 21.2 of the Scheme as per the draft amendment handed in and marked as “X” for identification. Leave to amend is granted. Amendment to be carried out with a period of three weeks. 7. So far as the observations made in paragraph 6(b) of the Affidavit of the Regional Director is concerned, the Petitioner/Transferee Company through their Counsel undertakes that the reserves arising out of the scheme shall not be utilized for the purpose of declaring dividend by the Transferee Company in future. The said Undertaking is accepted. 8. 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. 9. Since all the requisite statutory compliances have been fulfilled both the Company Scheme Petitions are made absolute in terms of prayer clause (a) of the respective Petitions. 10.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 order. 3 11.Petitioner Companies are directed to file a copy of this order alongwith a copy the Scheme of Amalgamation with the concerned Registrar of companies, electronically, along with E-form 21 in addition to the physical copy, within 30 days from the date of issuance of the order by the Registry. 12.Petitioners to file a copy of this order alongwith a copy of the Scheme with the concerned Registrar of Companies, electronically, along with e-form 21 in addition to the physical copy, within 30 days from the date of issuance of the order by the Registry. 13.The Petitioner Companies to pay costs of Rs. 10,000/- each to the Regional Director, Western Region, Mumbai and the Petitioner in Company Scheme Petition No. 463 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. 14. Filing and issuance of the drawn up order is dispensed with. 15.All authorities concerned to act on a copy of this order along with Scheme duly authenticated by the Company Registrar, High Court (O.S.), Bombay. 16.In addition, it is stated on instructions that the liabilities of the Transferor Company will be taken over by the Transferee and they will take steps to satisfy the objector - HDFC’s claim. In addition, the securities and rights of HDFC will not be prejudicially affected by sanction of this Scheme. Statements accepted. (S. C. DHARMADHIKARI, J.) 4