Vishnu Mall Management Private Limited v. -
THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY SCHEME PETITION NO. 622 OF 2014.
CONNECTED WITH COMPANY SUMMONS FOR DIRECTION NO. 526 OF 2014 VISHNU MALL MANAGEMENT PRIVATE LIMITED ....Petitioner/ First Transferor Company AND COMPANY SCHEME PETITION NO. 623 OF 2014.
CONNECTED WITH COMPANY SUMMONS FOR DIRECTION NO. 527 OF 2014 ANCHOR RESIDENCY PRIVATE LIMITED ....Petitioner/ Second Transferor Company AND COMPANY SCHEME PETITION NO. 624 OF 2014.
CONNECTED WITH COMPANY SUMMONS FOR DIRECTION NO. 528 OF 2014 OJAS MALL MANAGEMENT PRIVATE LIMITED ....Petitioner/ Transferee Company In the matter of the Companies Act, 1 of 1956 and other relevant provision of Companies Act, 2013; AND In the matter of Scheme of Amalgamation of VISHNU MALL MANAGEMENT PRIVATE LIMITED, the First Transferor Company AND ANCHOR RESIDENCY PRIVATE LIMITED, the Second Transferor Company WITH
OJAS MALL MANAGEMENT PRIVATE LIMITED, the Transferee Company Called for hearing Mr. Rajesh Shah i/b Rajesh Shah & Co., Advocate for the Petitioners in all Petitions.
Mr. S. Ramakant Official Liquidator, present in CSP Nos. 622 and 623 of 2014.
Mr. C.J. Joy i/b Dr. H. Chaturvedi for Regional Director in all Petitions. CORAM: S. J. Kathawalla, J.
DATE : 23rd January,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 VISHNU MALL MANAGEMENT PRIVATE LIMITED, the First Transferor Company and ANCHOR RESIDENCY PRIVATE LIMITED, the Second Transferor Company with OJAS MALL MANAGEMENT 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 and Second Transferor companies and Transferee Company are in the business
of 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.
4.
The proposed scheme of Amalgamation would be advantageous to combine the activities and operations in a single Company and that the amalgamation would provide synergistic linkages besides economies in costs by combining the total business functions and the related activities and operations and thus contribute to the profitability of the amalgamated Company and that the amalgamation will enable the Transferee Company to consolidate the businesses and lead to synergies in operation and create a stronger financial 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.
5.
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.
6.
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.
7.
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. 8.
The Official Liquidator has filed his report on 10th December, 2014 in Company Scheme Petition Nos. 622 of 2014 and 623 of 2014 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.
9.
The Regional Director has filed an Affidavit on 15th January, 2015 stating therein, save and except as stated in paragraph 6 (a) and (b) thereof, it appears that the Scheme is not prejudicial to the interest of shareholders and public. In paragraph 6 (a) and (b) of the said Affidavit, the Regional Director has stated that:- 6 That the Deponent further submit that, a) Clause 13.3 of the scheme provides for adjustment for differences in Accounting Policies 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) 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 Hight 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 h binding on the petitioner company 10.
So far as the observation in paragraph 6 (a) of the Affidavit of Regional Director is concerned, the Petitioner Companies through its Counsel undertake that in addition to compliance of Accounting Standard 14, the Petitioner Companies will pass such accounting entries which are necessary in connection with this Scheme to comply with any other applicable Accounting Standards.
11. So far as the observation in paragraph 6(b) of the Affidavit of Regional Director is concerned, the Petitioner Company is bound to comply with all applicable provision of Income Tax Act, and all tax issues arising out of Scheme will be met and answered in accordance with law.
12. The Learned Counsel for Regional Director on instructions of Mr. M. Chandana Muthu, Joint Director Legal in the office of the Regional Director, Ministry of Corporate Affairs, Western Region, Mumbai states that they are satisfied with the undertaking given by the Advocate for the Petitioner Companies. The undertaking given by the Petitioner Companies 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. 622 of 2014 and 623 of 2014 are made absolute in terms of prayer clause (a) to (d) and 624 of 2014 is made absolute in terms of prayer clauses (a) to (c).
15. The Petitioner Company 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. Petitioner is directed to file a copy of this order along with a copy of the Scheme of Arrangement 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.
17. The Petitioner Companies to pay costs of Rs.10,000/- each to the Regional Director, Western Region, Mumbai and the Petitioners in Company Scheme Petition Nos. 622 of 2014 and 623 of 2014 to pay costs of Rs.10,000/- each to the Official Liquidator, High Court, Bombay. Costs 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. J. Kathawalla, J.)