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COMP/43/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
PETITION No. 43 of 2010
In
COMPANY APPLICATION No. 50 of 2010
With
COMPANY
PETITION No. 44 of 2010
In
COMPANY APPLICATION No. 51 of 2010
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WILSON
PRINTCITY PVT LTD - Petitioner(s)
Versus
.
- Respondent(s)
=================================================
Appearance :
MRS
SANGEETA N PAHWA for Petitioner(s) : 1,
MR PS CHAMPANERI for
Respondent(s) : 1,
MR YV VAGHELA for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 14/03/2011
ORAL
ORDER
1. The present
petitions are filed seeking sanction of Scheme of Amalgamation of
Oriental Infrastructure Pvt. Ltd. with Wilson Printcity Pvt. Ltd.
2. Oriental
Infrastructure Pvt. Ltd, the transferor company, filed Company
Application No.51/2010 seeking dispensation of the meetings of
shareholders and unsecured creditors on the ground that consents of
all the shareholders and unsecured creditors are obtained. It was
stated on behalf of the petitioner that the petitioner does not have
any secured creditor. This Court vide order dated 26.02.2010 made in
Company Application No.51/2010 ordered dispensation of meetings of
the shareholders and unsecured creditors of the petitioner company.
3. Wilson
Printcity Pvt. Ltd. the transferee company, filed Company Application
No.50/2010 seeking dispensation of the meeting of shareholders on the
ground that consents of all the shareholders are obtained. It was
stated on behalf of the petitioner that this being the transferee
company, meeting of creditors is not required to be held. This Court
vide order dated 26.02.2010 made in Company Application No.50/2010
ordered dispensation of meeting of the shareholders of the petitioner
company. This court further held that meeting of creditors is not
required to be held.
4. The
petitioners thereafter filed Company Petitions seeking sanction of
the Scheme of Amalgamation.
5. This Court
vide order dated 15.03.2010 made the order of admission in both the
petitions and directed issuance of notice to the Regional Director in
case of both the companies and notice to the Official Liquidator in
case of the Transferor Company. This court also directed publication
of notice of petition in Gujarati Daily ‘Loksatta Jansatta’
and English Daily ‘Indian Express’ both Ahmedabad
Editions.
6. Pursuant to
the order dated 15.03.2010 the petitioners have published the notice
of petition in Gujarati Daily Gujarati Daily ‘Loksatta
Jansatta’ and English Daily ‘Indian Express’ both
Ahmedabad Editions on 08.04.2010. The Directors of the petitioner
companies have filed the affidavits in support of publication of
advertisements dated 11.10.2010. The affidavits also state that
apropos to the advertisements, neither the petitioner companies nor
the advocate for the petitioners have received any objection against
the sanction of the scheme.
7. The
petitioners at this stage invited attention of this Court to an oral
order dated 06.08.2010 made by this Court in Company Application No.
218/2010 and allied matter permitting amendment of Scheme to the
extent of modifying Clause 2A of the Scheme. A copy of the order is
also placed on record along with affidavit filed by the respective
petitioners in response to the report filed by the Regional Director.
8. Pursuant to
the notice to the Official Liquidator in respect of the Company
Petition No.44 of 2010, report dated 15.09.2010 is filed by the
office of Official Liquidator. The report of the Official Liquidator
confirms that the affairs of the transferor company have not been
conducted in a manner prejudicial to the interest of its members or
the public interest. The Official Liquidator however requested this
Court to direct the transferor company to preserve its books, papers
and records for a period of 8 years from the date of sanctioning of
scheme of amalgamation and not to dispose of the records without the
prior permission of Central Government u/s. 396 A of the Companies
Act, 1956.
9. In response
to the notice to the Regional Director, North-Western Region,
Department of Company Affairs, Shri Pankaj Champaneri, Ld. Assistant
Solicitor General of India, has appeared and has filed an affidavit
of the Regional Director dated 23.2.2011. A perusal of this
affidavit would disclose that the office of the Regional Director has
made the observation only with respect to allotment of share exchange
ratio with respect to the clause regarding ratio of exchange of
shares. The Regional Director has also requested the matter with
regard to the investments of the transferee company in the paid-up
equity share capital of the transfer company.
10. In response
to the aforesaid affidavit, the petitioner of Company Petition No.
43/2010 which is the transferee company, has filed an affidavit dated
26.02.2011. It is the case of the petitioner that the reference to
clause 2A would show that the ratio of share exchange is reflected.
It is further the case of the petitioner that this Court is empowered
to permit the modification / amendment in the scheme in exercise of
its inherent jurisdiction. This Court has already made an order dated
06.08.2010 permitting amendment of the scheme after hearing the
parties. Accordingly, there is now no further requirement for taking
any approval of the shareholders. Furthermore, in response to a
specific query of the Regional Director, the petitioner had addressed
a letter dated 7.2.2011 to the Regional Director which further
clarifies the issue regarding the ratio of share exchange. The
observation with regard to the extent of investment of the transferee
company in the transferor company stands satisfied in view of what is
contained in the order dated 6.8.2010 made by this Court in Company
Application No. 218/2010. Mr. Pankaj Champaneri, the Ld. Assistant
Solicitor General of India has accepted that in view of what is
stated in the affidavit filed on behalf of the petitioner dated
26.2.2011 read with the reply dated 7.2.2011, the observations of the
Regional Director stand satisfied and there is no objection to the
sanction of the Scheme of Amalgamation.
11. There are
no objections received on the record of the present petitions. There
are no other adverse circumstances against sanction of the Scheme.
12. In the
facts and circumstances, the Scheme of Amalgamation as annexed at
Annexure `C’ to the petitions is hereby sanctioned as allowed
to be amended vide order dated 06.08.2010 made by this Court in
Company Application No.218/2010. The petitioner is permitted to
substitute Clause 2A the scheme as permitted by this Court pursuant
to the aforesaid. It is however, observed that the transferor company
will preserve its books, papers and records for a period of 8 years
from the date of sanctioning of scheme of amalgamation and will not
dispose of the records without the prior permission of Central
Government u/s. 396A of the Companies Act, 1956. With these
observations, the Company Petitions are accordingly allowed.
13. The cost of
the Central Government is quantified at Rs.7,500/- per petition.
Liberty is given to the Transferee Company to pay the amount of cost
directly by drawing a Cheque in favour of Shri Pankaj Champaneri, Ld.
Assistant Solicitor General of India. The cost of the office of
Official Liquidator is quantified at Rs.5,000/- in respect of the
transferor company. Liberty is given to the Transferee Company to pay
the amount of cost directly by drawing a Cheque in favour of the
Official Liquidator.
[Anant
S. Dave, J.]
*pvv
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