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COMP/226/2009 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
PETITION No. 226 of 2009
In
COMPANY
APPLICATION No. 403 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
SAMRUDDHI
CEMENT LIMITED - Petitioner(s)
Versus
.
- Respondent(s)
=========================================
Appearance
:
SINGHI &
CO for
Petitioner(s) : 1,
MR PS CHAMPANERI for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 06/05/2010
ORAL
JUDGMENT
1. The
present petition is filed by the petitioner Samruddhi Cement
Limited (the transferee Company) for sanction of the Scheme of
Arrangement between Grasim Industries Limited (the transferor
Company) and the petitioner transferee Company and their respective
shareholders and creditors.
2. Shri
Mihir Joshi, learned Senior Advocate appearing on behalf of the
applicant has submitted that pursuant to the order passed by this
Court dated 12th November 2009, in Company Application
No.403/2009, having procured, obtained and produced on record the
consent in writing by the equity shareholders of the petitioner
Company to the proposed Scheme of Arrangement, the meeting of the
equity shareholders of the petitioner transferee Company was ordered
to be dispensed with. It is submitted that there no secured and
unsecured creditors of the petitioner transferee Company.
3. It
is further submitted that by Shri Joshi, learned Senior Advocate
appearing on behalf of the petitioner transferee Company that the
transferor Company had already approached the High Court of Madhya
Pradesh at Indore by way of Company Petition No.2/2010 to sanction
the Scheme of Arrangement between the transferor Company and the
transferee Company and by judgment and order dated 31st
March 2010, the Madhya Pradesh High Court has sanctioned the Scheme
of Arrangement between the transferor and transferee Company.
Therefore, it is requested to consider and sanction the proposed
Scheme of Arrangement between the transferor and transferee Company.
4. This
Court by its order dated 19th November 2009, admitted the
present Company Petition and directed issuance of notice to the
Regional Director. This Court also directed publication of notice of
petition in Indian Express , Ahmedabad Edition and in Gujarat
Samachar , Ahmedabad Edition. It is reported that the petitioner
Company has published the notice of petition in aforesaid two local
newspapers on 27th November 2009. The affidavit has been
filed on behalf of the petitioner Company dated 30th
November 2009 confirming the publication of notice in the newspapers
as directed and also the notice of hearing of the petition served
upon the Regional Director. This Court has not received any
objection from any person objecting to the proposed Scheme of
Arrangement between the transferor and transferee Company.
5. In
response to the notice to the Regional Director, the Regional
Director has filed the affidavit dated 10th May 2010
affirmed by one Rakeshchandra, Regional Director, Western Region,
Ministry of Corporate Affairs, Mumbai and following observations are
made by the Regional Director.
(i) The
subscribed capital of the Resulting Company is Rs.85 crores. However
the paid up capital is only Rs.17.04 crores represented by 1,00,000
equity shares of Rs.5/- each fully paid up and 16.99 crores of equity
shares of Rs.5/- partly paid up by Rs.1/- each (called and paid up).
The Resulting Company may be directed that the partly paid up shares
shall be fully paid up before giving effect to the scheme.
(ii) The new
shares to be issued by the resulting company shall be listed in the
respective stock exchanges in which the shares of the Demerged
Company are listed (BSE & NSE) and shall comply with SEBI/Stock
Exchange Regulations.
(iii) The
Resulting Company shall comply with the provisions of section 94/97
read with Schedule X of the Companies Act, 1956 for increasing its
authorized capital and shall file necessary forms together with the
applicable filing fees and stamp duty with the Registrar of Companies
in this regard.
(iv) The
Resulting Company shall comply with RBI guidelines in respect of
allotment of shares to NRI/FIIS.
6. Considering
the above, it appears that save and except the above
observations/objections, nothing has been pointed out by the Regional
Director by which it can be said that the proposed Scheme of
Arrangement shall be prejudicial to the interest of the shareholders
and public. No other objections has been raised by the Regional
Director to the proposed Scheme of Arrangement.
In
respect of the aforesaid observations, Shri Mihir Joshi, learned
Senior Advocate appearing on behalf of the petitioner has submitted
that 16.99 crores, equity shares of the face value of Rs.5 each on
which Rs.1 each was called up, have already been made fully paid on
31st March 2010. In support of the above, he has relied
upon the certificate of the Chartered Accountant which is at Page 109
of the petition.
In
respect of the observation No.(ii) of the Regional Director, Shri
Joshi, learned Senior Advocate appearing on behalf of the petitioner
has submitted that as per Clause 14(g) of the Scheme of Arrangement,
all the equity shares of the petitioner Company including those to be
issued in terms of the Scheme of Arrangement shall be listed and/or
admitted to trading on the Bombay Stock Exchange Limited and the
National Stock Exchange of India Limited on which the shares of
Grasim Industries Limited (the transferor Company) are presently
listed.
In
respect of observation No.(iii), Shri Joshi, learned Senior Advocate
appearing on behalf of the petitioner has submitted that as per
Clause 20 and 22 of the Scheme of Arrangement, the petitioner Company
shall comply with the provisions of sections 94/97 read with schedule
X of the Companies Act, 1956 for increasing its authorized capital
and shall file necessary forms and pay applicable filing fees and
stamp duty to the Registrar of Companies.
In
respect of observation No.(iv), Shri Joshi, learned Senior Advocate
appearing on behalf of the petitioner has further submitted that the
petitioner Company shall comply with the RBI guidelines in respect of
allotment of shares to NRIs/FIIs pursuant to the sanctioning of the
Scheme of Arrangement.
Considering
the aforesaid submissions made by Shri Joshi, learned Senior Advocate
appearing on behalf of the petitioner Company with respect to each
observations made by the Regional Director and subject to complying
with the aforesaid by the petitioner Company, there is no reason to
refuse to sanction of the Scheme of Arrangement. The petitioner
Company is directed to comply with what is submitted by Shri Joshi,
learned Senior Advocate appearing on behalf of the petitioner with
respect to each of the observations recorded hereinabove.
7. Considering
the aforesaid facts and circumstances and considering the fact that
the proposed Scheme of Arrangement is already sanctioned by the High
Court of Madhya Pradesh at Indore in the petition filed by the
transferee Company and considering the submissions made by Shri
Joshi, learned Senior Advocate appearing on behalf of the petitioner
with respect to each of the observations recorded hereinabove, I hold
there are no grounds or circumstances to refuse grant of approval to
the proposed Scheme of Arrangement. On considering and perusing the
Scheme of Arrangement and the proceedings, it appears that the
requirement of the provisions of sections 391 to 394 of the Companies
Act, 1956 is satisfied. The Scheme of Arrangement is genuine and
bonafide and in the interest of the shareholders.
8. Under
the circumstances and accordingly, the present petition is allowed
and the proposed Scheme of Arrangement is hereby approved and
sanctioned. Prayers made in paragraph 21 of the Company Petition is
hereby granted.
9. The
petition is allowed accordingly. Fees of the learned Assistant
Solicitor General of India, Shri P.S. Champaneri is quantified at
Rs.5,000/-. The said fee shall be paid by the petitioner Company.
(M.R.
Shah, J.)
*menon
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