Gujarat High Court
Inovail Pharmaceuticals (India) ... vs Respondent(S) on 29 January, 2015
Author: Harsha Devani
Bench: Harsha Devani
O/COMP/111/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY PETITION NO. 111 of 2014
In COMPANY APPLICATION NO. 98 of 2014
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INOVAIL PHARMACEUTICALS (INDIA) PRIVATE LIMITED....Petitioner(s)
Versus
.....Respondent(s)
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Appearance:
MR NITIN K MEHTA, ADVOCATE for the Petitioner
MR PRIYANK LODHA for MR DEVANG VYAS, ADVOCATE for the
Respondent
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
Date : 29/01/2015
ORAL ORDER
1. The petitioner, Inovail Pharmaceuticals India Private Limited (hereinafter referred to as "the transferor company") has presented a Scheme of Amalgamation under sections 391 to 394 and other applicable provisions of the Companies Act, 1956 of Menarini Raunaq Pharma Ltd. (hereinafter referred to as "the transferor company No.2" and A. Menarini India Pvt. Ltd. (hereinafter referred to as "the transferor company No.2) with the transferee company.
2. Mr. Nitin Mehta, learned advocate for the petitioner submitted that the Scheme of Amalgamation is for the mutual benefit of the company and its shareholders. The details of the commercial and operational advantages that would flow by Page 1 of 5 O/COMP/111/2014 ORDER virtue of the proposed Scheme of Amalgamation are set out in the petition. Being enabled under its Memorandum and Articles of Association to propose such a scheme, the transferee company and the transferor company have proposed the said scheme before this Court. The transferor company No.2 having its registered office within the jurisdiction of High Court of Delhi, had presented a scheme before that Court, which has been sanctioned vide order dated 15.09.2014.
3. It has been further submitted that by an order dated 3 rd April, 2014 made in Company Application No.98 of 2014, this Court has dispensed with the meetings of the equity shareholders, secured and unsecured creditors as their consent to the scheme had been obtained. It is further submitted that even otherwise, there is no arrangement or compromise offered to any creditor.
4. The learned counsel also submitted that in pursuance of the order dated 9th May, 2014 passed by this Court admitting this petition, the petitioner company has dispatched individual notices of hearing of the petition scheduled on 20 th June, 2014 upon all its unsecured creditors at their respective last known addresses by Registered Post Acknowledgment Due and that the petitioner company has also published notices of the date of hearing of the petition scheduled on 20 th June, 2014 and the venue in the English daily "Indian Express" and in the Gujarati daily "Sandesh" on 27th May, 2014. The attention of the court was invited to the fact that despite the above notices, none have come to oppose the present petition.
5. Pursuant to the notice issued to the Regional Director, Page 2 of 5 O/COMP/111/2014 ORDER Mr. Shambhu Kumar Agarwal, the Regional Director, North Western Region, filed his report dated 2nd September, 2014, stating that he had invited the comments of the Income Tax Department for the proposed scheme, however, no such reply was received by him from the Income Tax Department. The Regional Director, accordingly, prayed that the court may direct the petitioner company to undertake compliance with the provisions of the Income Tax Act. The Regional Director had also called for the report of the Registrar of Companies. The Registrar of Companies had submitted a report stating that there were no complaints against the petitioner. The Regional Director, in conclusion, observed in the report that the proposed scheme is not prejudicial to the interest of the shareholders of the petitioner company.
6. The Official Liquidator has filed his report on 3 rd September, 2015. In paragraph 18 of the said report, it has been stated that the affairs of the petitioner company have not been conducted in a manner prejudicial to the interest of its members or to the public interest in terms of second proviso to section 394(1) of the Companies Act, 1956. Therefore, M/s Inovail Pharmaceuticals (India) Private Limited i.e. the second transferor company may be dissolved without being winding up after obtaining the following clarifications from the petitioner company : firstly, to submit clarification with regard to non-compliance of Companies Act in the matter of seeking permission from Registrar of Companies for extension of time limit beyond statutory period for conducting AGM for the year 2011; secondly, to submit clarification for not submitting the share transfer deeds and minutes of AGM for verification of the Chartered Accountants appointed for scrutiny of the books of Page 3 of 5 O/COMP/111/2014 ORDER account, and thirdly, to direct the petitioner company to publish the advertisement of petition in the official gazette.
7. The learned counsel invited the attention of the Court to the affidavit-in-reply dated 25th November 2014 filed by the petitioner, whereby it is submitted that the procedural lapses as pointed out by the Official Liquidator in paragraph 18 of his report, had occurred due to ignorance and oversight and the petitioner undertakes to follow the due process of law and the remedy the same, as may be prescribed under law. The learned counsel has further submitted that the said breach does not in any manner affect the working of the company or interest of its members or the public interest, more so when the transferee company holds 99.99% of shares of the petitioner company. As regards the objection with regard to the share transfer deed and the minutes of the AGM, it was submitted that the same have been submitted subsequently. With respect to dispensation of the publication in the official gazette, it was submitted that the same can be granted at any stage of the petition and even at the present stage of hearing, more so when the transferee company holds 99.99% of shares of the petitioner company.
8. Having regard to the facts and circumstances of the case and considering the submissions advanced during the course of hearing before this court as well as the order passed by the High Court of Delhi, the Court is of the view that the objections raised by the Official Liquidator no longer survive and that there is no legal impediment to the sanction of the present Scheme of Amalgamation, which appears to be in the interest of stakeholders, viz., shareholders and creditors as well as in Page 4 of 5 O/COMP/111/2014 ORDER the public interest and therefore, deserves to be sanctioned.
9. In the aforesaid premises, the petition is allowed. The Scheme of Amalgamation embodied in the Scheme of Amalgamation (Annexure "E" to the petition) is hereby sanctioned and the same shall be binding to the transferor companies and the petitioner company, as also their respective members / shareholders and creditors. The petitioner company / transferor company shall undertake to file within 45 days from the date of sealing of the certified copy of order, the order sanctioning the Scheme of Amalgamation with the Registrar of Companies, Gujarat at Ahmedabad for registration and upon such certified copy of the order being so filed, the Registrar of Companies, Gujarat at Ahmedabad is further directed to transfer all files, documents, records relating to the transferor companies maintained by him with the files, documents and record of the transferee company. The petitioner company shall preserve its books of account, papers and records and shall not dispose of the record without prior permission of the Central Government.
10. The petition stands disposed of accordingly. The costs to be paid to the Central Government Counsel are quantified at Rs.7,500/- per petition. The same may be paid over to the Central Government Counsel.
(HARSHA DEVANI, J.) parmar* Page 5 of 5