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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMPANY PETITION NO.63 OF 2009
CONNECTION WITH
COMPANY APPLICATION NO.1652 OF 2008
Ajmera Realty & Infra India Ltd. ....Petitioner
WITH
COMPANY PETITION NO.64 OF 2009
CONNECTED WITH
COMPANY APPLICATION NO.1653 OF 2008
Ajmera Precoated Steels Ltd. ....Petitioner
Mr.Shyam Mehta with Mr.Rajesh Shah i/b Rajesh Shah &
Co. for the Petitioners.
Ms.S.V. Bharucha with Mr.P. Khosla i/b Mr.S.K.
Mohapatra for the Regional Director.
CORAM : S.J. VAZIFDAR, J.
DATED : 21ST MARCH, 2009.
ORAL JUDMENT :-
1. The Petitioners seek an order sanctioning a
scheme of arrangement entered into between them. The
scheme involves the demerger of the steel division of
the Petitioner in Company Petition No.63 of 2009, the
transferor company and the merger thereof into the
resulting company i.e. the Petitioner in Company
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Petition No.64 of 2009.
2. The procedure has been complied with. The
Regional Director has filed an affidavit stating that
subject to the observations in paragraph 6 thereof,
the scheme does not appear to be prejudicial to the
interest of the shareholders and the public.
3. In paragraph 6 of the affidavit, the Regional
Director has stated that neither the petitions nor the
scheme provide details of the assets and liabilities
of the steel division of the demerged company that are
to be transferred to and vested in the resulting
company.
4. As pointed by Mr.Mehta, the Petitioners’
scheme itself in clause 1.10 defines the steel
division as under :-
“1.10 “Steel Division” means the business of
manufacturing, processing, distributing,
importing, exporting, buying selling,
assembling, repairing etc. all kinds of
steel products and ferrous and non ferrous
metal products and includes the undertaking
comprising of:
1.10.1 All assets (whether movable or
immovable, real or personal, corporeal or
incorporeal, present, future or contingent,
tangible or intangible) wherever situated
pertaining to and relatable to the Steel
Division;
1.10.2 All present and future liabilities
arising out of the activities or operations
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of Steel Business, including loans, debts,
current liabilities and provisions, duties
and obligations relatable to the Steel
Division;
1.10.3 Without prejudice to the generality of
the above, the Steel Division shall include
in particular:
a. all properties required for the
Steel Division wherever situated,
including all current assets, funds,
offices, furniture, fixtures, officeequipment, appliances, accessories,
vehicles;
b. all permits, rights,
entitlements, bids, tenders, letters ofintent, expressions of interest,
municipal and other statutory
permissions, approvals, consents,licenses,
concessions,
registrations,
exemptions,
subsidies,
remissions
related to Steel Division, tenancies in
relation to office and factory and/orresidential property for the employees
related to Steel Division, offices,
goodwill, intellectual property rights
(including technical know how, patents,
trademarks, copy rights) related to
Steel Division, investment, cashbalances, the benefit of any deposit and
financial assets related to SteelDivision, funds belonging to or proposed
to be utilized for the Steel Division,
bank balances and bank accounts relating
to the day to day operations an specific
to the working of Steel Division,privileges, all other rights and
benefits, lease rights, licenses, domain
names, trade name and other intellectual
property rights of any nature whatsoever
and licenses in respect thereof, powers
and facilities of every kind, nature anddescription whatsoever, rights to use
and avail of telephone, telexes,
facsimile connection and installations,
utilities, power lines, electricity and
other services, provisions, funds,
benefits of all agreements, contracts
and arrangements and all other interest
in connection with or relating to the
Steel Division;
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c. all records, files, papers,
computer programs, manuals, data,
libraries, catalogues, quotations, sales
and advertising materials, lists of
present and former customers andsuppliers, customer credit information,
customer pricing information, and other
records, whether in physical form orelectronic form in connection with or
relating to the Steel Division;
d. all duties and obligations which
are relatable to Steel Division;
e. all earnest moneys and/or
security deposits, if any, paid or
received by the ARIIL in connection with
or relating to the Steel Division;
1.10.4 For the purpose of this Scheme,
it is clarified that liabilities pertaining
a.
to the Steel Division include:
the liabilities, which arise out
of the respective activities oroperations of the Steel Division;
b. specific loans and borrowings
raised, incurred and utilized solely for
the respective activities or operation
of the Steel Division;
c. liabilities other than those
referred to in sub-clauses (a) and (b)
above, being the amounts of general or
multipurpose borrowings of ARIIL,
allocated to the Steel Division in the
same proportion in which the value ofthe assets transferred under this Scheme
bear to the total value of the assets of
ARIIL immediately before giving effect
to this Scheme;
1.10.5 All permanent employees of ARIIL
employed in the Steel Division, as identified
by the Board of Directors of ARIIL, as on the
Effective Date;
1.10.6 Any question that may arise as
to whether a specified asset or liability
pertains or does not pertain to the Steel
Division or whether it arises out of the
activities or operations of the Steel
Division shall be decided by mutual agreement
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between the Board of Directors of ARIIL and
Resulting Company.”
. Further the schedule forming a part of the
provisional balance sheet as on 31.3.2008 and the
profit and loss account in the year ended on that date
bifurcate the details of the steel division and the
real estate division of the transferor company.
5. There is no provision in law which requires
the balance sheet and profit and loss account or the
scheme enumerating and setting out each and every
asset which
is the subject matter of the scheme of
demerger. My attention has not been invited to any
such provision.
6. I do not suggest that in a given case a
creditor, shareholder or any other concerned party is
prohibited from calling for any particulars while
examining a scheme under Sections 391 to 394 including
a scheme of merger or demerger. Whether such an
application ought to be granted or not would depend
upon the facts of the case.
7. It is pertinent to note that in the present
case apart from stating that the details of the assets
which form a part of the scheme have not been
enumerated nothing adverse regarding the schemed as
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such is stated. Nor is it even suggested that as a
result thereof the interest of any concerned party has
been adversely affected. Further still the entire
procedure has been complied with and no objection has
been raised by any party including the creditors and
members.
8. Lastly, it is pertinent to note that the
members and the creditors of the Petitioners’ will not
be affected adversely by the scheme as there are no
creditors of the transferee company. Nor are there
any liabilities that the transferee company is exposed
to. This is so provided in the balance sheet and the
profit and loss account for the year ending 31.3.2008.
The unaudited balance sheet and the profit and loss
account for the period ended on 30.9.2008 indicates
the liability of only Rs.38,000/-. The creditors are
the directors of the company themselves. The same
does not warrant a refusal of an order sanctioning the
scheme.
9. In the circumstances, the both the Petitions
are made absolute in terms of prayers (a) to (d).
10. The Transferee Company shall lodge a copy of
this order and the scheme with the concerned
Superintendent of Stamps for the purpose of
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adjudication of stamp duty payable, if any, on the
same within thirty days of obtaining the authenticated
and/or certified copy of the order.
11. The transferor company to pay costs of
Rs.7500/- to the Regional Director. Costs to be paid
within four weeks from today.
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.
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