Kumar Housing Corporation Private Limited v. 0

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY SCHEME PETITION NO. 249 OF 2015.

CONNECTED WITH COMPANY SUMMONS FOR DIRECTION NO. 179 OF 2015. KUMAR HOUSING CORPORATION PRIVATE LIMITED ....Petitioner/ the First Transferor Company AND

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY SCHEME PETITION NO. 250 OF 2015.

CONNECTED WITH COMPANY SUMMONS FOR DIRECTION NO. 180 OF 2015. SUKUMAR ENVIRO FARMS PRIVATE LIMITED ....Petitioner/ the Second Transferor Company AND COMPANY SCHEME PETITION NO. 251 OF 2015.

CONNECTED WITH COMPANY SUMMONS FOR DIRECTION NO. 181 OF 2015. KUMAR URBAN DEVELOPMENT PRIVATE LIMITED ....Petitioner/ the Transferee Company In the matter of the Companies Act, 1 of 1956 and other relevant provision of the Companies Act, 2013;

AND

In the matter of Sections 391 to 394 of the Companies Act, 1956 and other relevant provision of the Companies Act, 2013;

AND In the matter of Scheme of Amalgamation of KUMAR HOUSING CORPORATION PRIVATE LIMITED, the First Transferor Company AND SUKUMAR ENVIRO FARMS PRIVATE LIMITED, the Second Transferor Company WITH KUMAR URBAN DEVELOPMENT PRIVATE LIMITED, the Transferee Company Called for hearing Mr. Rajesh Shah i/b Rajesh Shah & Co., Advocate for the Petitioners. Mr. P S Jetly i/b Mr. A.A. Ansari for Regional Director. Mr. S. Ramakantha, Official Liquidator.

CORAM: S. C. Gupte, J.

DATE: 30th October, 2015 PC:

1.

Heard Learned Counsel for the parties. No objector has come before the court to oppose the Scheme and nor any party has controverted any averments made in the Petitions.

2.

The sanction of the Court is sought to a Scheme of Amalgamation of KUMAR HOUSING CORPORATION PRIVATE LIMITED, the First Transferor Company and SUKUMAR ENVIRO FARMS PRIVATE LIMITED, the Second

Transferor Company with KUMAR URBAN DEVELOPMENT PRIVATE LIMITED, the Transferee Company, under Sections 391 to 394 of the Companies Act, 1956.

3.

The Learned Counsel for the Petitioners states that the First Transferor Company and Second Transferor Company is presently carrying on business of Real Estate Construction and Development including develop, improve build, sell, lease, manage, commercially exploit and otherwise deal in real estate, properties of all nature and description or any rights therein including land, buildings and other estate and realty including shopping malls and the Transferee Company at present is carrying on the business of Real Estate Construction and Development including develop, improve build, sell, lease, manage, commercially exploit and otherwise deal in real estate, properties of all nature and description or any rights therein including land, buildings and other estate and realty including shopping malls.

base and that the amalgamation will result in economy of scale and reduction in overheads, administrative, managerial and other expenditure and optimal utilization of resources and that the amalgamation will result in significant reduction in the multiplicity of legal and regulatory compliances required at present to be carried out by the Transferor Companies and the Transferee Company and that the Scheme of amalgamation will result in cost saving for all the companies as they are capitalizing on each others core competency and resources which are expected to result in stability of operations, cost savings and higher profitability levels for the Amalgamated Company.

4.

Learned Counsel for the Petitioners further states that the Board of Directors of the Petitioner Companies have approved the said Scheme of Amalgamation by passing Board Resolutions which are annexed to the respective Company Scheme Petitions.

5.

The Learned Counsel for the Petitioners further states that, Petitioner Companies have complied with all the directions passed in the respective Company Summons for Directions and that the respective Company Scheme Petitions have been filed in consonance with the orders passed in respective Company Summons for Directions.

6.

The Learned Counsel appearing on behalf of the Petitioners have stated that the Petitioner Companies have complied with all requirements as per directions of this Court and they have filed necessary affidavit of

compliance in the Court. Moreover, the Petitioner Companies undertake to comply with all statutory requirements if any, as required under the Companies Act, 1956 / 2013 and rules made there under whichever is applicable. The said undertaking is accepted. 7.

The Official Liquidator has filed his report on 12th day of August, 2015 in Company Scheme Petition Nos. 249 and 250 of 2015 stating that the affairs of the Transferor Companies have been conducted in a proper manner and that the Transferor Companies may be ordered to be dissolved. 8.

The Regional Director has filed an Affidavit on 12th day of September, 2015 stating therein, save and except as stated in paragraph 6, it appears that the Scheme is not prejudicial to the interest of shareholders and public. In paragraph 6 of the said Affidavit, the Regional Director has stated that:- "6. That the Deponent further submits that, (a) "Clause 14.3 of the scheme provides for adjustment for differences in Accounting Polices between Transferor Company and Transferee Company. In this regard, it is submitted that in addition to the compliance of Accounting Standard - 14, the Transferee Company shall pass such accounting entries which are necessary in connection with the scheme to comply with other applicable Accounting Standard such as AS-5 etc.

(b) With respect to clause 13.1 of the Scheme, it is submitted that the assets/ liabilities of the Transferor Company shall be transferred to Transferee Company on book value basis instead of fair value.

(c) That the Deponent further submits that, the tax issue if any arising out of this scheme shall be subject to final decision of Income Tax Authority and approval of the scheme by Hon'ble High court may not deter the Income Tax Authority to scrutinize the tax returns filed by the petitioner company after giving effect to the amalgamation. The decision of the Income Tax Authority is binding on the petitioner company.

9. So far as the observation in paragraph 6 (a) of the Affidavit of Regional Director is concerned, the Petitioner Company through its counsel submitted that in addition to the compliance of Accounting Standard - 14, the Transferee Company shall pass such accounting entries which are necessary in connection with the scheme to comply with other applicable Accounting Standard such as AS-5 etc. 10.

So far as the observation in paragraph 6(b) of the Affidavit of Regional Director is concerned, the Learned Counsel for the Petitioner Companies submit that the assets/ liabilities of the transferor

Company shall be transferred to Transferee Company on book value basis instead of fair value.

11.

So far as the observation in paragraph 6(c) of the Affidavit of Regional Director is concerned, the Learned Counsel for the Petitioner Companies submit that the Petitioner Companies are bound to comply with all applicable provisions of Income Tax Act and all tax issues arising out of the Scheme will be met and answered in accordance with law.

12.

The Learned Counsel for Regional Director on instructions of Mr. M. Chandanamuthu, Joint Director Legal in the office of the Regional Director, Ministry of Corporate Affairs, Western Region, Mumbai states that they are satisfied with the undertakings given by the Petitioners. The above undertakings are accepted. 13.

From the material on record, the Scheme appears to be fair and reasonable and is not violative of any provisions of law and is not contrary to public policy.

14.

Since all the requisite statutory compliances have been fulfilled, Company Scheme Petition Nos. 249 and 250 of 2015 is made absolute in terms of prayers clause (a), (b) and (d) and 251 of 2015 is made absolute in terms of prayer clauses (a) and (c).

15.

The Petitioner Companies to file a copy of this order and the Scheme duly authenticated by the Company Registrar, High Court (O.S.), Bombay, with the concerned Superintendent of Stamps, for the purpose of adjudication of stamp duty payable, if any, on the same within 60 days from the date of the Order. 16.

The Petitioners are directed to file a certified copy of order along with a copy of the Scheme of Amalgamation with the concerned Registrar of Companies, electronically, along with E Form INC- 28 in addition to physical copy as per the relevant provisions of the Companies Act, 1956/2013 whichever is applicable.

17.

The Petitioner Companies to pay costs of Rs.10,000/- each to the Regional Director, Western Region, Mumbai and the Petitioners in the Company Scheme Petition Nos. 249 and 250 of 2015 to pay costs of Rs.10,000/- to the Official Liquidator, High Court, Bombay. Cost to be paid within four weeks from the date of the Order. 18.

Filing and issuance of the drawn up order is dispensed with. 19.

All concerned regulatory authorities to act on a copy of this order along with Scheme duly authenticated by the Company Registrar, High Court (O. S.), Bombay.

(S. C. Gupte, J.)

CERTIFICATE I certify that this Order uploaded is a true and correct copy of original signed order.

Uploaded by : Shankar Gawde, Stenographer.