Gujarat High Court
Amneal Pharmaceuticals Company ... vs Respondent(S) on 21 November, 2014
Author: N.V.Anjaria
Bench: N.V.Anjaria
O/COMP/260/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY PETITION NO. 260 of 2014
In
COMPANY APPLICATION NO. 128 of 2014
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AMNEAL PHARMACEUTICALS COMPANY (INDIA) PRIVATE
LIMITED....Petitioner(s)
Versus
.....Respondent(s)
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Appearance:
MRS SWATI SOPARKAR, ADVOCATE for the Petitioner(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 21/11/2014
ORAL ORDER
In respect of Scheme of Arrangement in the nature of Amalgamation of Amneal Life Sciences Private Limited with Amneal Pharmaceuticals Company (India) Private Limited, this substantive petition is filed, seeking sanction to the Scheme from this Court.
2. At the outset, learned advocate Mrs. Swati Soparkar for the petitioner company prayed to condone the delay of 49 days which has occurred in filing the present petition. The reasons for delay are furnished in paragraph-17. It was submitted that the petition could not be filed within a period of 7 days from the date of filing of the report of the Chairman as required under Rule 79 of the Companies(Court) Rules, 1959, for the reason that capital structure of the petitioner company as well other company underwent a substantial change. Due to the said factor, it was necessary to ascertain latest details of the capital Page 1 of 4 O/COMP/260/2014 ORDER structure and it was further required that the effect of change of the capital structure on the share exchange ratio proposed in the Scheme is examined. It was pointed out that the opinion of the Chartered Accountant was solicited and further that the consent of new shareholder was also necessary. In completion of those procedures and requirements, the statutory period could not be observed.
3. The reasons supplied for explaining the delay are satisfactory. Sufficient cause for condoning the delay of 49 days is made out and could not be said to be not bona fide. Hence, the delay of 49 days in filing the present petition is condoned.
4. The petitioner company is a transferee company. Learned advocate for the petitioner further pointed out from the record that the petitioner company filed Company Petition No. 128 of 2014, wherein by order dated 5th May, 2014, this court dispensed with holding of the meeting of the equity shareholders of the petitioner company in view of their consent in writing being on record. The meeting of the creditors was dispensed with accepting the contention that the Scheme does not envisage any compromise with the creditors of the transferee company and their rights and interests are not adversely affected due to the Scheme. The positive net worth of the transferee company had been certified by the Chartered Accountant.
4.2 It was submitted that despite the substantial
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O/COMP/260/2014 ORDER
increase in the equity share capital, the exchange ratio proposed in the Scheme has not undergone the change as the share capital of both the companies have increased. The Chartered Accountant's opinion was obtained and certificate of the Chartered Accountant figures at Annexure-E(pages-88 to 89). The Chartered Accountant noted that the Scheme was based upon the financial results of both the companies as on 31st March, 2014. However, for commercial reasons, the share capital of both the companies had undergone a substantial change during the current financial year. The Chartered Accountant examined impact of the changed capital structure of the company and noted that it would have no effect or impact on the share exchange ratio proposed in the Scheme.
4.3 As already noted, the Scheme is already approved by the equity shareholders by giving consent letters in writing.
5. In view of the fact that the requirements of law upto the present stage have been complied with, the petition deserves to be admitted.
6. In the facts and circumstances of the case, follower order is passed:
(i) Petition is admitted.
(ii) The same shall be posted for final hearing
on 23rd December, 2014.
(iii) Notice of hearing of the petition shall be Page 3 of 4 O/COMP/260/2014 ORDER advertised in English daily "Indian Express", Ahmedabad Edition and daily "Sandesh", Ahmedabad Edition, daily in vernacular language at least ten days before the date of final hearing so fixed. In the notice to be published in the aforesaid newspapers, amongst other relevant details, it shall be stated that Company Petition No. 260 of 2014 shall be posted on 23rd December, 2014 for further proceedings and appropriate orders. There shall be a consolidated advertisement of notice.
(iv) Publication in Government Gazette is dispensed with.
(v) There shall be a notice to Central Government in compliance of section 394(A) of the Companies Act, 1956, through the Regional Director, North Western Region, Ministry of Corporate Affairs, ROC Bhavan, Rupal Park, Ahmedabad.
Direct service is permitted in addition to normal mode of service.
(N.V.ANJARIA, J.) chandrashekhar Page 4 of 4