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COMP/163/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
PETITION No. 163 of 2010
In
COMPANY
APPLICATION No. 241 of 2010
With
COMPANY
PETITION No. 164 of 2010
In
COMPANY APPLICATION No. 242 of 2010
=============================================
STERLING
ADDLIFE MUNDRA HOSPITAL PVT. LTD. - Petitioner(s)
Versus
...
- Respondent(s)
=============================================
Appearance
:
MRS SWATI SOPARKAR for
Petitioner(s) : 1,
MR IQBAL A SHAIKH for Respondent(s) :
1,
=============================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 22/03/2011
ORAL
ORDER
1. These
are the petitions filed by the petitioner companies for sanction of
a Composite Scheme of Arrangement in the nature of Amalgamation of
Sterling Addlife Mundra Hospital Private Limited with Sterling
Addlife India Limited, as well as Reduction of Capital in form of
Utilisation of Securities Premium Account of Sterling Addlife India
Limited, the Petitioner Transferee Company; under section 391 read
with Section 394 read with Sec. 78 and 100 to 104 of the Companies
Act, 1956. Both the Petitioner Companies belong to the same group of
management. The Transferor company is a wholly owned subsidiary of
the Transferee Company.
2. It
has been pointed out that vide the orders dated 18th
August 2010 passed in the Company Application no. 241 of 2010, the
meetings of the Equity Shareholders and the only Secured Creditor of
the Transferor company were dispensed with in view of the written
consent letters placed on record. The meeting of the unsecured
creditors was also dispensed with in view of the strong financial
position of the Transferee Company indicated by the substantial
excess of assets over the liabilities of the Transferee Company,
prior as well as Post amalgamation. Whereas vide the order dated 18th
August 2010 passed in Co. Application No. 242 of 2010, the meeting of
the Equity Shareholders of the Transferee Company were directed to be
convened. Pursuant to the directions, issued in this regard, after
the due notices to the concerned parties as well as the public
notice, the said meeting was duly convened on 25th
September 2010 and the proposed scheme was duly approved unanimously
by the Equity Shareholders, present and voting at the said meeting.
The result of the said meeting was duly reported to this court vide
the report dated 8th October 2010.
3. My
attention is drawn to clause 12.1 to 12.3 of the scheme, whereby the
reduction of capital in form of utilization of Securities Premium
Account of the Transferee Company has been proposed as an integral
part of the scheme. It has also been pointed out that vide order
dated 18th August 2010, separate procedure as envisaged
under sec. 101(2) of the Companies Act, 1956 and further procedure
prescribed under rules 48 to 65 of the Company Court Rules were also
dispensed with.
4. The
substantive petitions were admitted vide order dated 29th
October 2010. The public notices for the same were duly advertised in
the newspapers ‘Indian Express’ English daily, and
‘Sandesh’ Gujarati Daily, both Ahmedabad editions dt.
11th November 2010 and the publication in the Government
gazette was dispensed with. Affidavits dt. 11th November
2010 confirm the same. No one has come forward with any objections to
the said petitions even after the publication. The same has been
further confirmed by the additional affidavit dated 21st
March 2011 annexed to the petitions.
5. Notice
of the petition of the Transferor Company was served upon the
Official Liquidator attached to Gujarat High Court. Vide the report
dated 28th January 2011, filed by the Official Liquidator,
it is observed that the affairs of the Transferor company has not
been conducted in a manner prejudicial to the interest of their
members or to the public interest. However, the Official Liquidator
has requested this court to direct the Transferor Company to maintain
its books of accounts and records for a period of 8 years from the
date of sanctioning the scheme and not to dispose off the same
without prior permission of the Central Govt. The Transferor company
is accordingly directed to keep its books and records for a period of
8 years from the date of sanctioning the scheme and not to dispose
off the same without prior permission of the Central Govt.
6. Notice
of the petitions have been served upon the Central Govt. and Shri
Iqbal A. Shaikh, Standhing Counsel appearing for the Central Govt. An
affidavit dt. 28th February 2011 has been filed by Mr.
Uttam Chand Nahta, the Regional Director, North-Western Region,
Ministry of Corporate Affairs, whereby two observations are made.
(i) pertain to the proposed reduction of capital in form of
utilization of securities premium account of the Transferee Company
in order to adjust the amount of Goodwill arising out of previous
scheme of amalgamation, which is not yet reflected in the books of
accounts of the Transferee Company and the (ii) pertain to compliance
of the Accounting Standard-14 by the Transferee Company.
7. The
attention of this court is drawn to the Additional Affidavit dated
21st March 2011, whereby the said issue has been dealt
with and it has been submitted that the above referred previous
scheme of amalgamation of Bindi Developers Private Limited with the
Transferee Company has been recently sanctioned by this Hon’ble
court on 17th March 2011. Upon the said scheme being
effective, the amount of Goodwill shall be reflected in its books
which is now proposed to be adjusted against the Securities Premium
Account of the Transferee Company under the current scheme. This
being not against any applicable provisions of law, does not call for
any further direction or objection. Hence, the reduction of capital
as envisaged under clause 12.1 to 12.3 of the scheme is hereby
granted and the minutes under Sec. 103 (1) of the Act, as per para
21 of the petition are hereby approved.
8. It
has been further pointed out that vide clause 10(i) of the scheme,
the compliance of the Accounting Standard- 14 is already provided and
the subsequent clauses are only enabling clauses and are not
contradictory to the said compliance. Considering the said
explanation, the observation of the Regional Director does not
survive.
9. Heard
Smt. Swati Saurabh Soparkar, learned advocate for the petitioner
company and Shri Iqbal A. Shaikh, the counsel appearing for the
Central Govt.. Having gone through the petitions, and having
considered the submissions made in this regard and being satisfied
that amalgamation as well as Reduction of Capital as envisaged under
the proposed scheme would be in the interest of the companies and
their members and creditors. Prayers in terms of paragraph 15 (a) of
the Co. Pet. No. 163 of 2010 and para 22(a) and (b) of the Co.
Petition No. 164 are hereby granted.
10. The
petitions are disposed of accordingly. So far as the costs to be paid
to the Central Govt. Standing Counsel is concerned, the same are
quantified at Rs. 3,500/- per petition. The same may be paid to the
learned advocate Shri Iqbal A. Shaikh. Cost of Rs. 4,500/- be paid to
the Office of the Official Liquidator towards cost for the Transferor
Company.
[ANANT
S. DAVE, J.]
//smita//
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