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COMP/247/2009 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
PETITION No.247 of 2009
In
COMPANY
APPLICATION No.407 of 2009
===================================================ADITYA
BIRLA NUVO LIMITED - Petitioner(s)
Versus
.
- Respondent(s)
===================================================
COMPANY
PETITION No.248 of 2009
In
COMPANY
APPLICATION No.408 of 2009
===================================================
MADURA
GARMENTS EXPORTS LIMITED - Petitioner(s)
Versus
.
- Respondent(s)
===================================================
COMPANY
PETITION No.249 of 2009
In
COMPANY
APPLICATION No.409 of 2009
===================================================
MG
LIFESTYLE CLOTHING COMPANY PVT. LTD.-Petitioner(s)
Versus
.
- Respondent(s)
===================================================
COMPANY
PETITION No.250 of 2009
In
COMPANY
APPLICATION No.410 of 2009
===================================================
PETER
ENGLAND FASHIONS AND RETAIL LTD.-Petitioner(s)
Versus
.
- Respondent(s)
===================================================
Appearance
:
MR
MIHIR THAKORE, MR MIHIR JOSHI, SR. ADVOCATES, FOR SINGHI & CO for
Petitioner(s) : 1,
MR
PS CHAMPANERI for Respondent(s) : 1,
===================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
Date
: 28/01/2010
COMMON
ORAL ORDER
These
four petitions have been filed by four petitioner-Companies seeking
sanction of the Composite Scheme of Arrangement in the nature of
Amalgamation (the Composite Scheme) of Madura Garments Exports
Limited (Madura Exports), MG Lifestyle Clothing Company Private
Limited (MG Lifestyle) and Peter England Fashions and Retail Limited
(Peter England Fashions) (the transferor companies) with Aditya
Birla Nuvo Limited (the transferee company). The Composite Scheme
includes reduction of share capital of Peter England Fashions.
The
transferee company had filed an application, being Company
Application No.407 of 2009 for requisite directions to convene and
hold meeting of equity shareholders of the transferee company, and
simultaneously prayed for dispensing with the meetings of the
secured and unsecured creditors as the interest of the creditors of
the transferee company was not to be affected by the Composite
Scheme. Accordingly, vide order dated 13.11.2009 made in Company
Application No.407 of 2009 directions had been issued to convene and
hold meeting of the equity shareholders while permitting
dispensation of meeting of the creditors of the transferee company.
The meeting of the shareholders of the transferee company was held
on 19.12.2009 and the proposed Composite Scheme was approved
unanimously by all the shareholders present and voting in person or
by proxy.
Two
of the transferor companies, namely, Madura Exports and MG Lifestyle
had been permitted to dispense with meetings of equity shareholders
and preference shareholders as per the orders made on 13.11.2009 in
Company Application No.408 of 2009 and Company Application No.409 of
2009 respectively, in view of the fact that both the classes of
shareholders had consented and such consent letters had been placed
on record of respective applications. Similarly, meetings of secured
and unsecured creditors had also been dispensed with by the said
order dated 13.11.2009 as the interest of the creditors was not
likely to be affected by the Composite Scheme.
In
so far as Peter England Fashions (the transferor company) is
concerned, similar order dated 13.11.2009 having been made in
Company Application No.410 of 2009 meetings of equity shareholders
and preference shareholders were dispensed with in view of the fact
that consent letters had been placed on record. In the same manner,
as in case of other two transferor companies, meetings of secured
and unsecured creditors had also been dispensed with by the same
order dated 13.11.2009 as interest of the creditors was not likely
to be affected by the Composite Scheme. The High Court had also
dispensed with the separate procedure prescribed under Section
101(2) of the Companies Act, 1956 (the Act) holding that such
reduction did not involve either diminution of any liability in
respect of unpaid capital or payment to any shareholders of any paid
up share capital.
As
per order of admission made on 23.12.2009 in all the four petitions
notices were issued to the Regional Director in case of all the
petitioner-Companies and to the Official Liquidator in case of
Madura Exports and MG Lifestyle. Notice of petition had also been
published as directed by the Court in ‘Indian Express’ (English
daily, Ahmedabad Edition) and ‘Sandesh’ (Gujarati daily, Ahmedabad
Edition) as per affidavits dated 08.01.2010. No one has come forward
with any objection to the petitions even after publication of the
advertisements. Publication in Government Gazette had been dispensed
with as directed in order dated 23.12.2009.
Notice
of admission of the petitions of the transferor companies were
served on the Official Liquidator attached to the High Court of
Gujarat. The Official Liquidator has placed on record report dated
21.01.2010 in case of both Madura Exports and MG Lifestyle. One M/s.
B. Pandit & Co., Chartered Accountants, were appointed by the
Official Liquidator and as per investigation report dated 18.01.2010
it has been observed On the basis of our comments in above
paras and according to the explanations given to us and books of
accounts produced before us, we report that the acts and
transactions of Madura Garmetns Exports Limited were conducted
within the objects mentioned in the Memorandum of Association of
Company and that the affairs of the Company have not been conducted
in a manner prejudicial to the interest of its members or the public
interest.
Notice
of admission of the petitions has also been served upon the Regional
Director, Ministry of Corporate Affairs, who has filed his
consolidated affidavit dated 19.01.2010. After narrating the facts
the Regional Director has stated It appears that scheme is not
prejudicial to the interest of shareholders and public.
Learned advocate appearing for the Central Government has stated
that in the circumstances the Court may pass such order as may be
deemed fit and proper.
Considering
the facts and circumstances of the case it is apparent that the
Composite Scheme would be in the interest of the companies, their
members and creditors. There is no reason to withhold sanction to
the Composite Scheme. Prayer made in Paragraph No.29(a) of Company
Application No.247 of 2009, Paragraph No.26(a) of Company
Application No.248 of 2009, Paragraph No.26(a) of Company
Application No.249 of 2009 and Paragraph No.26(a) of Company
Application No.250 of 2009 is hereby granted to the effect that the
Composite Scheme is hereby sanctioned so as to be binding on all
members, shareholders and other persons, including companies
concerned under the scheme with effect from the appointed date.
In
light of provisions of Section 394(b)(vi) of the Act the transferor
companies are hereby directed to be dissolved without winding up
upon the transferor companies filing certified copy of the order of
this Court with the Registrar of Companies.
The
petitions stand disposed of accordingly. The costs to be paid to the
Assistant Solicitor General of India are quantified at Rs.4,000/-
per petition, and the costs to be paid to the Official Liquidator
are quantified at Rs.5,000/- each in case of Madura Exports and MG
Lifestyle. The aforesaid amounts shall be paid by the
petitioner-Companies.
Registry
is directed to place a copy of this order in all connected matters.
Sd/-
[D. A.
MEHTA, J]
***
Bhavesh*
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