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TMI Blog2012 (12) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... ven in the Petition. 4. Copies of the Memorandum and Articles of Association as well as the latest audited Accounts as at 31st March, 2011 of the Petitioner Transferor and Transferee Companies have also been enclosed with the Petition. 5. Copies of the Resolutions passed by the Board of Directors of the Petitioner Companies approving the Scheme of Amalgamation have also been placed on record. 6. It has been submitted that no proceedings under Sections 235 to 251 of the Companies Act, 1956 is pending against the Petitioner Companies. 7. So far as Share Exchange ratio is concerned, the Scheme provides that upon amalgamation of the 'Transferor Companies No. 1 to 2' into the 'Transferee Company' pursuant to the Scheme of Amalgamation, the following would be the share Exchange Ratio: a. Eleven (11) Equity Shares of Rs. 10/- each to be issued and allotted by the Transferee Company in lieu of every Seventeen (17) Equity Shares of Rs. 10/- each fully paid up to the shareholders of Abhineet Pesticides Private Limited. b. Eighty Two (82) Equity Shares of Rs. 10/- each to be issued and allotted by the Transferee Company in lieu of every three (3) Equity Shares of Rs. 10/- each fully pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsferor Companies No. 1 to 2 shall become the employees of the Transferee Company without any break or interruption in their services upon sanctioning of the Scheme of Amalgamation by the Hon'ble Court. Further the Ld. RD had raised the following observations: 5. That the Deponent further craves leave to submit that Para 5.10 of Part-V of the Scheme of amalgamation provides that if the scheme cannot be made effective on or before 31st March, 2012, the scheme shall become null & void and be of no effect.- 6. That the Deponent further craves leave to submit that the Registrar of Companies, Delhi has reported that it has been observed from the Balance Sheet as at 31.03.2010 of both the Transferor Companies, that the Transferor Company No. 1 viz. M/s Abhineet Pesticides Private Limited had outstanding unsecured loan of Rs. 176.50 Lacs and similarly the Transferor Company No. 2 viz. M/s Craftsilver Jewels Private Limited had outstanding unsecured loan of Rs. 119.70 Lacs. The unsecured loans received by both the Transferor Companies was invested in the shares of M/s Forties Financial Services Limited. In the next financial year ended 31.03.2011, both these companies received Shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion extending the effective date of Scheme of Amalgamation between M/s Abhineet Pesticides Private Limited and M/s Craftsilver Jewels Private Limited with M/s Fern Healthcare Private Limited from 31.03.2012 to 31.03.2013. A copy of the extract of Board Resolution passed by the Petitioner Companies is being attached with the affidavit. (ii) The Transferor Company No. 1 and Transferor Company No. 2 had received a sum of Rs. 150 Lacs and Rs. 130 Lacs respectively as share application money from M/s Fern Healthcare Private Limited (i.e. the Transferee Company). The share application money was utilized by the Transferor Companies to pay off its unsecured loan standing in the Balance Sheet as at 31.03.2010. As the sum of Rs. 150 Lacs and 130 Lacs received by the Transferor Company No. 1 and Transferor Company No. 2 respectively as the share application money and no allotment has been made till March 31, 2011, accordingly, the same is reflected in the Balance Sheet of the Transferor Companies as Share Application Money. (iii) It is pertinent to mention here that the aforesaid Share Application Money received by the Respective Transferor Companies have been received only from Transferee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit, appeal or other proceeding of whatever nature shall not abate or be discontinued with. The relevant para is reproduced hereunder for ready reference If any suit, appeal or other proceeding of whatever nature by or against the Transferor Companies is pending, the same shall not abate or be discontinued or in any way be prejudicially affected by reason of or 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, as the case may be, 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. 13. Moreover the counsel for the Petitioner Companies placed reliance on the judgment of this Hon'ble Court in the matter of Salil Industries Limited in CP No. 149/2010 ,para no. 17: In support of the above submission, learned counsel relied on the judgment of Single Judge of the Gujarat High Court in the matter of Core Healthcare Limited Vs. Nirma Limited [(2007) 138 Comp Cas 204 (Gujarat)] wherein the court has held that "the Scheme can always be sanct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of calculation of Share Exchange ratio. Furthermore even if the contention of the Ld. RD is accepted and the share application money is converted into the Capital, the respective Transferor Companies will become subsidiaries of the Transferee Company and the inter Company holding needs to be cancelled for giving effect to the Scheme, meaning thereby the Transferee Company holding in the Transferor Companies will automatically get cancelled. Further the reliance was placed on the decision of the Apex Court in Miheer H. Mafat Lal vs. Mafat Lal Industries Ltd. [1996] 87 Comp. Case. 792 Also the reliance was placed on the decision of the Apex Court in Hindustan Lever Employees' Union v. Hindustan Lever Limited. [1994] 1 Comp LJ 267; [1995J 83 Comp Case 30] d. In reply to para 7 it is submitted that due to inadvertence/oversight the Transferor Company No. 1 has not filed its Balance Sheet and Annual Return as at 31.03.2008. Subsequently after the knowing the fact in the process of Affidavit of Ld. Regional Director, The Transferor Company No. 1 has filed its Balance Sheet and Annual Return as on 04/09/2012 for making the Compliance of the Act .The Transferor Company No. 1 has also mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany No. 1, 2 & the Transferee Company had given their respective affidavits dated 18-08-2012 confirming that neither the Petitioner Companies nor the counsel has received any objection pursuant to citations published in the newspapers. 16. In view of the approval accorded by the Shareholders and Creditors of the Petitioner Companies; representation/reports filed by the Regional Director, Northern Region and the Official Liquidator, attached with this Court to the proposed Scheme of Amalgamation, there appears to be no impediment to the grant of sanction to the Scheme of Amalgamation. Consequently, sanction is hereby granted to the Scheme of Amalgamation under sections 391 and 394 of the Companies Act, 1956. The Petitioner Companies will comply with the statutory requirements in accordance with law. Certified copy of the order be filed with the Registrar of Companies within 30 days from the date of receipt of the same. In terms of the provisions of sections 391 and 394 of the Companies Act, 1956, and in terms of the Scheme, the whole or part of the undertaking, the property, rights and powers of the Transferor Company No. 1 to 2 be transferred to and vest in the Transferee Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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