BIAX Speciality Films Pvt. Ltd. v. XPRO India Limited

9. The Transferor Company had earlier filed CA (M) No. 210 of 2010 seeking directions of this Court for (a) dispensation of meetings of the shareholders and secured creditors and (b) convening and holding the meeting of the unsecured creditors. By order dated 3' d December 2010, the Court allowed the aforesaid Application and dispensed with the requirement of convening the meetings of the shareholders and secured creditors of the Transferor Company as all the shareholders and all the secured creditors of Transferor Company had given their written approval to the Scheme and at the same time the Court had directed the Transferor Company to convene and hold meeting of the unsecured creditors for consideration and approval of the Scheme. At the meeting of the unsecured creditors of the Transferor Co. Pet.48/2011 Company held on 201h January, 2011 as per directions of the Court, the Scheme was approved by the requisite majority of the unsecured creditors of the Transferor Company. The Transferor Company has thereafter filed the present Petition seeking sanction of the Scheme. Vide order dated 1St February 2011, notices of the Petition were directed to be issued to the Regional Director, Northern Region and the Official Liquidator attached to this Court. Citations were also directed to be published in 'The Statesman' (English Edition) and in • 'Jansatta' (Hindi Edition). Affidavit of Service and Publication have been filed by the Petitioner showing compliance regarding service of the Petition on the Regional Director, Northern Region and the Official Liquidator, and also regarding publication of citations in the aforesaid newspapers on March, 2011. Copies of the newspaper cuttings, in original, containing the publications have been filed along with the Affidavit of Service. This Court on 1 st February, 2011, had issued notices in the second • motion petition subject to maintainability of the present petition being decided as the Transferee Company at that stage had not applied to the concerned High Court for sanction of the first motion. Today, it has been submitted by the Petitioner Transferor Company in the aforesaid Petition that the Scheme does not entail or involve any arrangement between the Transferee Company and its shareholders. The Scheme thus does not involve any reorganisation or restructuring of the capital of the Transferee Company. By virtue of the Scheme, there will be no change in control and management of the Transferee Company. The rights of the shareholders of the Transferee Company are thus not affected in any manner whatsoever by the Scheme. Thus no arrangement is proposed under the Scheme with the shareholders of the Transferee Company. It has further been submitted that the Transferee Company had filed an I application under Section 391 (1) of the Companies Act, 1956 with the Calcutta High Court within whose jurisdiction its registered office is situated in which it was prayed by the Transferee Company that an order may be passed declaring that there is no arrangement between the Transferee Company and its shareholders or creditors and as such no further proceedings are required to be taken by the Transferee Company under Sections 391 and 394 of the Companies Act, 1956. In the order dated 23 rd • March, 2011 made on the above application by the Calcutta High Court, a certified true copy of which Order has also been placed on record by the Petitioner Transferor Company, after taking note of the two judgments i.e. one of the Bombay High Court in Mahaamba Investments Ltd. vs. IDI Limited, 105 C.C. 16 and an unreported judgment of Hon'ble Mr. Justice Maharaj Sinha of the Calcutta High Court, made on 24th March, 2009 in CA No. 125 of 2009 in the matter of HPL Co generation Ltd., the Calcutta High Court has passed orders making the declaration as had been prayed by the Transferee Company in the said application, as has been stated above, to the effect that no further proceedings are required to be taken by the Transferee Company under Sections 391 to 394 of the Act.

12. In fact, pursuant to the notices issued, the Official Liquidator sought • information from the Petitioner Company. Based on the information received, the Official Liquidator has filed his report dated 14th March, 2011 wherein he has stated that he has not received any complaint against the proposed Scheme from any person/party interested in the Scheme in any manner and that the affairs of the Transferor Company does not appear to have been conducted in a manner prejudicial to the interest of its members or to public interest. • 13. In response to the notice issued in the Petition, Mr. B. K. Bansal, Regional Director, Northern Region, Ministry of Corporate Affairs has filed his Affidavit/Report dated 8th March, 2011. Relying on Clause 8.[1] of the Scheme, he has stated that, upon sanction of the Scheme by the Court, all the employees of the Transferor Company shall become the employees of the Transferee Company without any break or interruption in their service and that the Central Government has no objection to the Scheme.

14. No objection has been received to the Scheme from any party. Mr. Chandrasekharan Bhaskar, the authorised signatory of the Transferee Company has filed an affidavit dated 30 th November, 2010 and on 30t[1] March, 2011 and it has been submitted by the Transferor Company at the hearing before the Court that neither the Petitioner Company nor their Legal O Counsel has received any objection pursuant to citations published in the newspapers. Even today, during the course of hearing, Mr. K. S. Pradhan, Deputy Purnima Sethi, learned counsel for Official Liquidator have stated that they have no objection to the present Scheme being sanctioned. In view of the approval accorded by the shareholders and creditors of the Petitioner Transferor Company; representationlreports filed by the Regional Director, Northern Region and the Official Liquidator, attached with this Court, to the proposed Scheme of Amalgamation, there appears to Co. Pet.48/2011 Page 7of[9] be no impediment to the grant of sanction to the Scheme. Consequently, sanction is hereby granted to the Scheme of Amalgamation under Sections 391 and 394 of the Act and it shall be binding with effect from the Appointed Date, i.e. 1st April 2010. Upon the Scheme becoming effective and in terms of the Scheme, the whole of the undertaking, business, properties, assets, rights and powers of the Transferor Company be transferred to and vest in the Transferee Company as a going concern without any further act or deed. Similarly, in terms of the Scheme, all the • liabilities, duties and obligations of the Transferor Company be transferred to and vest in the Transferee Company without any further act or deed and the Transferor Company be dissolved without being wound up. It is, however, clarified that this order will not be construed as an order granting exemption from payment of stamp duty or taxes or any other charges, if payable in accordance with any law; or permissionlcompliance with any other requirement which may be specifically required under any law. I 17. The Petitioner Transferor Company 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.

18. Mr. Sharad Vaid, learned counsel for the Petitioner states that the Petitioner Company would voluntarily deposit a sum of Rs. 1,00,000/- in the Common Pool Fund of the Official Liquidator within three weeks from today. The statement is accepted.

18. The Petition is allowed in the above terms. Order Dasti. iLL MANMOIIAN,J MAY 239 2011 is