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TMI Blog2004 (5) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... or-Companies ). 2. The Registered office of the Petitioners Company is situated at Advanced Business Centre, 83 Maker Chambers VI, Nariman Point, Mumbai-21. The Petitioner Company is a Private Limited Company and a Group Company of the Transferee-Company. 3. The Transferor-Company No. 1 was incorporated on 30-5-1997 and is engaged in the business of prospecting and exploration of diamonds, precious stones and other minerals. The Transferor-Company No. 1 is engaged in reconnaissance activities in Andhra Pradesh and has made necessary applications to the appropriate authorities for additional reconnaissance permits in Chhattisgarh, Karnataka, Andhra Pradesh and Orissa. The Transferor-Company No. 1 has also established a treatment plant, used for processing of mineral samples in Bangalore, Karnataka. 4. The Transferor-Company No.2 was incorporated on 30-10-1998 and was incorporated for the purposes of prospecting exploring, mining, and quarrying of diamonds, precious stones and other minerals. The Transferor-Company No.2 has however, not commenced any prospecting, exploring, mining or quarrying activities as of the Appointed Date of this Scheme. 5. The Transferor-Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransferor-Company No. 1 as De Beers Mauritius Private Limited shareholding 99.99%, number of shares 3,181,498 and Debsam Limited, Luxembourg, 0.01% number of share. Salient feature of the Scheme :- 10. As per the Scheme, upon the coming into effect and subject to the provisions of this Scheme, including in relation to the mode of transfer and vesting, all assets and properties of the Transferor-Companies as on the Appointed date, and all the debts, liabilities, advances, duties and obligations of the Transferor-Companies, as on the Appointed Date shall get transferred and shall stand vested in the Transferee-Company without any further acts of any parties and without the consent of third parties. It include all the reserves, movable assets and immovable assets, if any whether present and contingent, all other assets (Whether tangible or intangible) of whatsoever nature, investments, lease and hire purchase contracts, powers, authorities allotments, approvals, consents, letters of intent, licenses, registrations, contracts engagements, arrangements, rights, titles, interests, benefits and advantages of any nature whatsoever and wheresoever situated, belonging to or in the owne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansferee-Company. 17. The Transferor-Companies shall not without the prior approval of the Board of Directors of the Transferee-Company utilize the profits, if any, for any purpose including of declaring or paying any dividend in respect of the period falling on and after the Appointed Date. 18. Until the Effective Date, the Transferor-Companies shall not without the prior approval of the Board of Directors of the Transferee-Company issue or allot any further securities either rights or bonus or otherwise. 19. If any suit, appeal or other proceeding of whatever nature by or against the Transferor-Companies be pending, the same shall not abate or be discontinued or be in any way prejudicially affected by reason of amalgamation by anything contained in this Scheme, but the said suit, appeal or other legal proceedings may be continued prosecuted and enforced by or against the Transferee-Company in the same manner and to the same extent as it would or might have been continued, prosecuted and enforced by or against the Transferor-Companies as if this Scheme had not been made. 20. The services of all the permanent employees of the Transferor-Companies shall stand transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ously executed upon the sanction of the Scheme in accordance with the terms hereof, by the Trustees of such Trusts in favour of the Trusts of the Transferee-Company so as to continue the benefits of the employees. For the purpose the Trusts created by the Transferor-Companies shall be transferred and/or continued by the Transferee-Company, if permitted by law, falling which the Transferee-Company shall establish similar trusts ensuring that there is continuity in this regard. The Trustees including the board of directors of the Transferor-Companies and the Transferee-Company shall be entitled to adopt such course in this regard as may be advised provided however that there shall be no discontinuities or breakage in the service of the employees of the Transferor-Companies. All in all, significant aspects of valid and sound Scheme have been incorporated and approved. 23. The Scheme is conditional on and subject to; ( a )Approval of the Scheme by the requisite majority of the respective members of and such class of persons of the Transferor-Companies and the Transferee-Company as may be directed by the High Court of Judicature at Bombay. ( b )Sanctions and orders under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Transferor-Company No.4 as on 31-3-2003 r/w unaudited balance sheet as on 31-8-2003, the share capital of the Transferor-Company as on 18-11-2003 is set out below : Authorized Capital, Equity Shares of Rs. 140,000,000 of 14,000,000 Equity Shares of Rs. 10 each, Issued, Subscribed and Paid-up Equity shares of Rs. 124,754,730 of 12,475,473 equity shares of Rs. 10 each fully paid up. 28. The issued, subscribed and paid up capital of Transferor-Company No. 4 has increased with effect from 17-11-2003 and the Authorized Capital of Transferor-Company No.4 has increased with effect from 13-6-2003. 29. As of the date of this Petition, the issued, subscribed and paid-up capital of the Transferor-Company No.4 is held as under : De Beers Mauritius Private Ltd., shareholding 99.99%, No. of shares 1,24,75,471. Debsam Ltd., Luxembourg shareholding 0.01%, number of shares 2. 30. The share capital of the Transferor-Company No. 5 as on 18-11-2003, based on audited balance sheet of the Transferor-Company as on 31-3-2003 and unaudited balance sheet of Transferor company as on 31st August, 2003 is set out as under : Authorized Capital, Equity Shares of Rs. 80,000,000 of equity sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... administrative and operational rationalization, organizational efficiencies, reduction in overhead and other expenses and optimal utilization of various resources. It will prevent cost duplication that can erode financial efficiencies of the holding structure and the resultant operations would be substantially cost efficient. Consequently, the Transferee-Company will offer a strong financial structure to all creditors including the creditors of the Transferor-Companies, facilities resource mobilization and achieve better cash flows. The synergies created by the amalgamation would lower the cost of borrowing, increase operational efficiency and integrate business functions. This would contribute substantially towards enhancement of shareholders value of the Transferor-Companies and Transferee-Company. ( c )The proposed amalgamation will reduce managerial overlaps, which are necessarily involved in running multiple entities. ( d )The proposed amalgamation will strengthen and consolidate the position of the Transferee-Company to participate more vigorously and profitably in a competitive market. It will also result in the growth in profitability for shareholders of the Transfere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors all these meetings were dispensed with. 39. There are no proceedings under section 235 and section 250 of the Companies Act, 1956 against the Transferor-Companies, Transferee-Company and the Petitioner Company. The Petitioner Company, as averred do not have any creditors, secured or unsecured. It is further averred that pursuant to the amalgamation of the Transferor-Companies with the Transferee-Company, its debt, repayment capacity will not be adversely affected. Therefore, the Scheme and the amalgamation contemplated thereby, will not adversely affect the interest of the creditors of the Companies and in fact it will be in the interest of the Creditors. The shareholders of the Petitioner Company namely De Beers Mauritius Pvt. Ltd. and Debsam Ltd., Luxembourg have at their respective meetings, by resolutions passed and unanimously approved the Scheme by its resolution dated 2-12-2002 and 20-12-2002 respectively. 40. That the Directors of the Petitioners Company are deemed to be interested in the Scheme to the extent of their directorship in the Transferor-Companies and/or the Transferee-Company. None of the Directors of the Transferor-Companies or the Petitioner Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same was allowed to be incorporated. Accordingly, the amendment was carried out as per order dated 12-4-2004 in all the petitions and prayer clause ( g ) ( i ) has been incorporated. 46. The Commercial exigencies and need of particular company and its shareholders and reason for the respective decisions or resolutions, and in absence of any serious objection or prejudice to anybody, the Court would not like to reassess or give its opinion or view on merit and or the wisdom of the Scheme. The scope of judicial review in such matters is very limited. This is not an Appellate jurisdiction, therefore, unless whole Scheme is unfair, unreasonable, contrary to law and public policy, any interference is impermissible. 47. Heard parties and after going through the Scheme of arrangement as well as merits of the said Scheme as discussed in above paras, and as no objections have been received on record or pointed out by any parties and as the Regional Director, as well as, Official Liquidator have expressed and endorsed that the Scheme is not prejudicial to the interest of the shareholders and the public interest and the affairs of the companies are also not prejudicial or affect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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