1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO. 297 OF 2009 CONNECTED WITH COMPANY APPLICATION NO. 376 OF 2009 HIKAL PHARMACEUTICALS LIMITED …………Petitioner / Transferor Company In the matter of the Companies Act, 1956 (1 of 1956); AND In the matter of Scheme of Arrangement between Hikal Pharmaceuticals Limited (‘the Transferor Company’) AND Hikal Limited (‘the Transferee Company’) AND their Respective Shareholders 2 Mr. Shyam Mehta with Rajesh Shah i/b Rajesh Shah & Co., for the Petitioner. Mr. M. Chandanamuthu, Dy Official Liquidator. Ms.Purnima Awasti and Ms. Lata Patne i/b Mr. S. K. Mohapatra for Regional Director. CORAM: A. M. Khanwilkar, J. DATE: 25th June, 2009 PC: 1. Heard learned counsel for the parties. 2. The sanction of the Court is sought under Sections 391 to 394 of the Companies Act, 1956, to the Scheme of Arrangement between Hikal Pharmaceuticals Limited, the Transferor Company and Hikal Limited, the Transferee Company and their Respective Shareholders. By an order dated 3rd day of April, 2009 passed by this Court in Company Application No.376 of 2009 the Filing of separate Application 3 or Petition by Hikal Limited, the Transferee Company was dispensed with. 3. Counsel appearing on behalf of the Petitioner Company has stated that they have complied with all the requirements as per the directions of this Court and they have filed necessary affidavits of compliance in the Court. Moreover, Petitioner Company also undertakes 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 para 6 (b) and 7 it appears that the Scheme is not prejudicial to the interest of shareholders, creditors and public. In paragraph 6 (b) he has advised the Registrar of Companies, Mumbai to take action for prima facie violation of Sections 295 read with Section 296 and Section 301 of the Companies Act, 1956 by the Transferee Company. The Registrar of Companies is at liberty to adopt appropriate proceedings in accordance with the law against the Transferee Company for alleged contravention of 4 Sections 295 read with Section 296 and Section 301 of the Companies Act, 1956, if it so desires. It is not stated and there is nothing to suggest that the alleged contraventions are detrimental to the Scheme as such. 5. The Regional Director in paragraph 7 of his Affidavit has stated that as per clause 6 (v) of the Scheme , the excess or deficit between the aggregate values of assets and liabilities would be adjusted in the General Reserve Account and according to him, such accounting treatment is incorrect. 6. Mr Mukund Mujumdar, the Authorised Signatory of the Petitioner Company, has filed an additional Affidavit dated 23rd June, 2009 on behalf of the Petitioner Company in reply to the objections raised by the Regional Director in paragraph 6 (b) and 7 of his Affidavit. In paragraph 4 of the said additional Affidavit the Petitioner Company has agreed to substitute the words “General Reserve Account” by the words “Capital Reserve Account” in Clause 6 (v) of the Scheme. 5 7. The Official Liquidator has filed report in Company Petition No. 297 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. 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 interests 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. Since all the requisite statutory compliances have been fulfilled, Company Petitions No. 297 of 2009 filed by the Transferor Company is made absolute in terms of prayer clauses (a) to (d). 6 10. The Transferee Company to lodge a copy of this order and the Scheme with the concerned Superintendent of Stamps for the purpose of adjudication of stamp duty payable, if any, on the same within 30 days of obtaining the certified copy and/ or an authenticated copy of the order. 11. The Petitioner Company to pay cost of Rs.7,500/- each to the Regional Director and to the 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. (A. M. Khanwilkar, J.)