~ 1 ~ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICITON COMPANY PETITION NO.270 OF 2009 CONNECTED WITH COMPANY APPLICATION NO.303 OF 2008 Novel Thermolders Private Limited. ..Petitioner/Transferor Company AND COMPANY PETITION NO. 271 OF 2009 CONNECTED WITH COMPANY APPLICATION NO.304 OF 2008 Kalpana Glass Fibre Private Limited. ..Petitioner/Transferee Company In the matter of Companies Act, 1956 (1 of 1956) AND In the matter of Section 391 & 394 of the Companies Act, 1956; AND In the matter of Scheme of Amalgamation of Novel Thermolders Private Limited with Kalpana Glass Fibre Private Limited and their respective shareholders Shri Hemant Sethi i/b Hemant Sethi & Co. advocates for Petitioners Shri Chandanamuthu Dy. OL in C.P No.270 of 2009 Mr. C.J. Joy and Ms. Nisha Valani i/b Mr. S.K Mohapatra for the Regional Director in both the Petitions. ~ 2 ~ CORAM : A.M. KHANWILKAR J DATE: 17th JULY 2009 P.C. Heard learned counsel for parties. 1. Leave to amend the scheme as per the draft amendment handed in and marked “X” for identification. Amendment is allowed. Amendment to be carried out within two weeks from today. 2. The sanction of the Court is sought under Section 394 of the Companies Act, 1956 to a Scheme of Amalgamation of Novel Thermolders Private Limited, the Transferor Company with Kalpana Glass Fibre Private Limited, the Transferee Company and their respective shareholders. 3. Counsel appearing on behalf of the Petitioners have stated that they have complied with all the requirements as per directions of this Hon’ble Court and they have filed necessary affidavits of compliance in the Court. 4. The Regional Director has filed his affidavit in reply and has stated that in para 6 that as per clause 14(e) of the Scheme the difference between the value of the Equity Share Capital of Novel and the paid up value of the Equity Shares to be issued to the shareholders of Novel by Kalpana after making adjustment given in para 14 [a], [b], [c] ~ 3 ~ and [d] above, will be debited/credited to Goodwill or Amalgamation Reserve Account as the case may be. Goodwill arising on account of this shall be adjusted against the Revenue Reserve of Kalpana. The Amalgamation Reserve arising on account of this, shall be transferred to General Reserve arising on account of this, shall be treated as Free Reserve and this appears to be not in consonance with generally accepted Accounting Principle, according to which any profit arising out of a Capital Transaction like Merger or Demerger ought to be treated as Capital Profits and hence , shall be transferred to Capital Reserve and not to General Reserve . Save as aforesaid the Scheme is not prejudicial to the interest of Creditors and Shareholders and public. 5. The counsel appears on behalf of the Petitioners makes statement on instruction that any profit arising out of a Capital Transaction like in the instance case will be treated as Capital Profits and hence shall be transferred to Capital Reserve and not to General Reserve. The said statement is accepted. Accordingly clause 14 of the Scheme shall stand modified to that extent. 6. The Official Liquidator has filed report in Company Petition No.270 of 2009 stating that the affairs of Transferor ~ 4 ~ Company has been conducted in a proper manner and that the Transferor Company may be ordered to be wound up. 7. Upon perusal of the entire 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 any public policy. None of the parties concerned have come forward to oppose the Scheme. 8. There is no objection to the Scheme and since all the requisite statutory compliances have been fulfilled, Company Petition Nos.270 of 2009 & 271 of 2009 are made absolute in terms of prayer clause (a). 9. The Transferee Company to lodge 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, within 30 days from the date of the order . 10. The Petitioners in both the Companies to pay cost of Rs.7500/- each to the Regional Director. Petitioner in Company Petition Nos.270 of 2009 to pay cost of Rs.7500/- to the Official Liquidator, High Court, Bombay. 11. Cost to be paid within 4 weeks from today. Petitioner to comply with statutory compliances, applicable, if any. ~ 5 ~ 12. Filing and issuance of the drawn up order is dispensed with. All concerned authorities to act on a copy of this order duly authenticated by Company Registrar, High Court, Bombay. (COMPANY JUDGE)