1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY SCHEME PETITION NO. 567 OF 2011 CONNECTED WITH COMPANY SUMMONS FOR DIRECTION NO. 507 OF 2011 PANCHGANI REAL ESTATE PRIVATE LIMITED …………Petitioner / Transferor Company AND COMPANY SCHEME PETITION NO. 568 OF 2011 CONNECTED WITH COMPANY SUMMONS FOR DIRECTION NO. 508 OF 2011 KAPSTONE CONSTRUCTIONS 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 read with Sections 100 to 103 of the Companies Act, 1956; AND In the matter of Scheme of Amalgamation of Panchgani Real Estate Private Limited (‘the Transferor Company’) with Kapstone Constructions Private Limited (‘the Transferee Company’) and their respective Shareholders Mr. Hemant Sethi i/b M/s. Hemant Sethi & Co., for the Petitioners Mrs. R.N.Sutar, Asst. Official Liquidator, present in the Company Scheme Petition No. 567 of 2011 2 Mr. P.Khosla i/b H.P Chaturvedi for Regional Director in both the Petitions. CORAM: S. C. Dharmadhikari, J. DATE: 23rd December, 2011 P.C. :- 1. Heard learned counsels for the parties. 2. The sanction of the Court is sought under Sections 391 to 394 read with Section 100 to 103 of the Companies Act, 1956, to the Scheme of Amalgamation of Panchgani Real Estate Private Limited, the Transferor Company, with Kapstone Constructions Private Limited, the Transferee Company, and their respective shareholders. 3. Learned 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 Companies 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 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 Scheme is not prejudicial to the interest of shareholders and public. 3 5. The Counsel appearing for the Regional Director has drawn my attention to paragraph 6(a) and 6(b) of the Affidavit of the Regional Director in which it is stated that: (a) As per clause 5.5 of the scheme, the Transferee Company shall take necessary steps to increase or alter or re- classify, if necessary, its authorized share capital suitably to enable it to issue and allot the shares required to be issued and allotted by it under the scheme. In this connection, the Transferee Company may be directed to comply with provisions of section 94/97 read with Schedule X of the Companies Act, 1956, in respect of filing of necessary forms with the Registrar of Companies after payment of necessary filing fee and stamp duty as applicable on the said forms. (b) Clause 6.5 of the Scheme states that the difference being the excess of net assets of the Transferor Company transferred to the Transferee Company at their book values over the value of equity shares allotted by the Transferee Company shall be credited in the General Reserve Account of the Transferee Company. In this connection it is respectfully submitted that the reserve arising out of this scheme shall not be utilized for the purpose of declaring dividend by the Transferee Company in future. 6. In response to the concern raised by the Regional Director in paragraph 6(a) of his Affidavit, the Transferee Company through its Counsel undertakes to comply with the provisions of Section 94/97 read with Schedule X of the Companies Act 1956, in respect of filing of necessary forms with the Registrar of Companies after payment of necessary filing fee and stamp duty as applicable on the said forms so as to increase or alter or re-classify, if necessary, its authorized share capital suitably to enable it to issue and allot the shares required to be issued and allotted by it under the scheme. The said undertaking is accepted. 4 7. In response to the concern raised by the Regional Director in paragraph 6(b) of his Affidavit, the Transferee Company through its Counsel undertakes that the reserve 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. The Official Liquidator has filed his report in Company Scheme Petition No. 567 of 2011 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. 9. 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 has come forward to oppose the Scheme. 10. Since all the requisite statutory compliances have been fulfilled, Company Scheme Petition No. 567 of 2011 filed by the Transferor Company is made absolute in terms of prayer clauses (a) to (e) and Company Scheme Petition No. 568 of 2011 filed by the Transferee Company is made absolute in terms of prayer clauses (a) to (d). 11. The Petitioner Companies to lodge a copy of this order and the Scheme, duly authenticated by the Company Registrar, High Court, Bombay with the concerned Superintendent of Stamps, 5 for the purpose of adjudication of stamp duty payable, if any, on the same within 60 days from the date of the Order. 12. Petitioners are directed to file a copy of this order along with a copy of the Scheme of Amalgamation with the concerned Registrar of Companies, electronically, along with E-Form 21 in addition to physical copy within 30 days from the date of issuance of the order by the Registry. 13. The Petitioners in both the Company Scheme Petitions to pay costs of Rs.10,000/- each to the Regional Director, Western Region, Mumbai and the Petitioner in Company Scheme Petition No. 567 of 2011 to pay cost 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 concerned authorities to act on a copy of this order along with Scheme duly authenticated by the Company Registrar, High Court, Bombay. (S. C. DHARMADHIKARI, J.)