1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Company Application No.117/2006 M/s Shri Ram Builcons Pvt. Ltd., Hotel Orange City Pvt. Ltd. & Shriram Builcons Infraventures Pvt. Ltd.. ------------------------------------------------------------------------------------------------------------------ Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. ----------------------------------------------------------------------------------------------------------------- CORAM : A.P.LAVANDE, J DATE : 29.08.2008 Heard Mr. M.G.Bhangde, Senior Counsel with Mr. S.N.Kumar for the applicants, Mr.U.S.Patole, official liquidator and Mr. S.K.Mishra, learned Assistant Solicitor General for Regional Director, Western Region, Ministry of Corporate, Affairs, Government of India, Mumbai. 2. By this petition under Section 391 of the Companies Act, 1956 ('The Act' for short) the petitioner seeks following reliefs. i) Pass appropriate orders for approving the Scheme of amalgamation of the applicant companies as per Annexure “D” or with such modified form as per the provisions of 391 of the Companies Act, 1956. ii) Dispense with issuance of the Advertisement as per Rule 24(2) of Company (Court) Rules, 1958 as the shares of all the companies are held by same group of share 2` holders/Directors which comprises of family members, friends and relatives. iii) Pass appropriate directions permitting the applicants to convene a meeting of the Creditors, shareholders and the members of the applicant companies as per Rule 73 of the Company (Court) Rules, 1958. iv) Pass appropriate orders in terms of Rule 79 of the Company Court (Rules), 1956. 3. It is not in dispute that prayers 2 and 3 no more survive since advertisement in terms of Rule 24 of the Court has been issued and meeting of the creditors, share-holders and the members of the applicant companies has been held in terms of Rule 73 of the Rules. 4. By this application the applicants Shriram Builcons Private Ltd. and Hotel Orange City Private Ltd. seek to amalgamate with Shriram Builcons Infraventures Pvt.Ltd. in terms of Scheme of amalgamation Exh.(D) to the application. Affidavits have been filed by the official liquidator and Regional Director. 5. The affidavit filed by the Regional Director discloses that except for the following objections he has no other objections for the proposed scheme of amalgamation. i) No separate company petitions in respect of 3` each of the transferor and transferee companies as required under Rule 67 and Rule 79 of the Companies (Court) Rules, 1959 are filed. ii) The petitioners have not given notice in respect of the transferor companies to the official liquidator in terms to second proviso to Section 394(1) of the Companies Act, 1956. 6. The official liquidator in his report dated 2nd May 2008 has also submitted that the petitioners have not complied with the Rules 67 and 79 of The Company (Court) Rules. The affidavits filed by the official liquidator as well as the Regional Director disclose that the affairs of the Companies have not been carried out in the manner prejudicial to the interest of the members or to the public interest. 7. In so far as the objection taken by the Regional Director about notice under Section 394(1) of the Act is concerned, it is not disputed that notice to the official liquidator has been given after filing of the petition and pursuant to the notice the official liquidator has filed his report. Hence, this objection no more survives. 8. In so far as non-compliance of Rules 67 and 79 of the Rules are concerned it is the submission of Mr. Bhangde, learned Senior Counsel that the said Rules does not contemplate filing of separate petitions or applications and on the contrary a joint application for seeking relief under Section 391 of the Act is permissible. Rules 67 and 79 of the Rules read thus; 4` “67. Summons for directions to convene a meeting-- An application under section 391(1) for an order convening a meeting of creditors and/or members or any class of them shall be by a Judge's summons supported by an affidavit. A copy of the proposed compromise or arrangement shall be annexed to the affidavit as an exhibit thereto. Save as provided in rule 68 hereunder, the summons shall be moved ex parte. The summons shall be in Form No.33, and the affidavit in support thereof in Form No.34.” “79. Petition for confirming compromise or arrangement-- Where the proposed compromise or arrangement is agreed to, with or without modification, as provided by sub-section (2) of section 391, the company, (or its liquidator, as the case may be), shall within 7 days of the filing of the report by the Chairman, present a petition to the Court for confirmation of the compromise or arrangement. The petition shall be in Form No.40. Where a compromise or arrangement is proposed for the purposes of or in connection with a scheme for the reconstruction of any company or companies, or for the amalgamation of any two or more companies, the petition shall pray for appropriate orders and directions under section 394. Where the company fails to present the petition for confirmation of the compromise or arrangement as aforesaid, it shall be open to any creditor or contributory as the case may be, with the leave of the Court, to present the petition and the company shall be liable for the costs thereof. Where no petition for confirmation of the compromise or arrangement is presented, or where the compromise or arrangement has not been approved by the requisite majority under section 391(2) and consequently no petition for confirmation could be presented, the report of the Chairman as to the result of the meeting made 5` under the preceding rule shall be placed for consideration before the Judge for such orders as may be necessary.” 9. In so far as the compliance of Rule 67 is concerned it has not been seriously disputed by the official liquidator and Mr. Mishra the Assistant Solicitor of General that pursuant to the order passed by this court meeting of the creditors and members of the companies has been convened and the report has been filed by the Chairman appointed for conducting the meeting. Therefore, the objection regarding non-compliance of Rule 67 also has no merit. In so far as the non-compliance of Rule 79 is concerned perusal of the said Rule discloses that Rule does not mandate filing of separate application. Mr. Bhangde is justified in placing reliance on the Judgment of the Delhi High Court in Mohan Exports India Ltd. and Tarun Overseas Pvt. Ltd. (1999Company Cases Vol. 95, 53) in which it has been laid down that the Companies Act, 1956 does not prohibit filing of joint application under sections 391 and 394 of the Act for sanction of a scheme of amalgamation or compromise when the subject matter is the same and common questions of law and fact would arise for decision. I, therefore, find that objection taken by the official liquidator and the Regional Director regarding non-compliance of the Rules 1979 has no merit. In view of the above the application is allowed. In terms of the minutes of the order which is marked 'X' for identification and shall form part of the order. The application stands disposed of. Judge patle 6`