Gujarat High Court
Prerna vs Respondent(S) on 15 April, 2011
Author: Anant S. Dave
Bench: Anant S. Dave
Gujarat High Court Case Information System
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COMP/209/2010 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
PETITION No. 209 of 2010
In
COMPANY APPLICATION No. 256 of 2010
With
COMPANY
PETITION No. 210 of 2010
In
COMPANY APPLICATION No. 257 of 2010
With
COMPANY
PETITION No. 211 of 2010
In
COMPANY APPLICATION No. 258 of 2010
With
COMPANY
PETITION No. 212 of 2010
In
COMPANY APPLICATION No. 259 of 2010
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PRERNA
BUILDERS LIMITED - Petitioner(s)
Versus
.
- Respondent(s)
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Appearance :
MR
HARMISH K SHAH for Petitioner(s) : 1,
MR PS CHAMPANERI for
Respondent(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 15/04/2011
COMMON
ORAL ORDER
The present petitions are for seeking sanction to the scheme of amalgamation of Prerna Builders Limited, Transferor Company (Petitioner of Company Petition No 209 of 2010), Prerna Stock Brokers Private Limited, Transferor Company,(Petitioner of Company Petition No 210 of 2010) and Prerna Hospitals Private Limited Transferor Company (Petitioner of Company Petition No 211 of 2010) with the petitioner Prerna Infrabuild Private Limited Transferee Company (Petitioner of Company Petition No 212 of 2010) under Section 391 read with Section 394 of the Companies Act, 1956.The scheme of Amalgamation is produced at Annexure-C in the Petitions.
The Petitioner of Company Petition No 209 of 2010 is Prerna Builders Limited, transferor Company. It was incorporated on 6/4/1988 in the office of Registrar of Companies, Gujarat and having its registered office at 104,Prerna Tirth 2, Satellite, Ahmedabad-380015.
The Petitioner of Company Petition No 210 of 2010 is Prerna Stockbrokers Private Limited, transferor Company. It was originally incorporated on 23/11/1993 in the office of Registrar of Companies, Gujarat and having its registered office at 606, Doctor House, Near Parimal Crossing, Ellisbridge, Ahmedabad.-380006.
The Petitioner of Company Petition No 211 of 2010 is Prerna Hospitals Private Limited, transferor Company. It was incorporated on 30/03/1989 in the office of Registrar of Companies, Gujarat and having its registered office at 6th Floor, Doctor House, Near Parimal Crossing, Ellisbridge, Ahmedabad.-380006.
The Petitioner of Company Petition No 212 of 2010 is Prerna Infrabuild Limited, transferee Company. It was originally incorporated on 6/4/1988 in the office of Registrar of Companies, Gujarat and having its registered office at Survey No.820/1,Makarba,In lane of Panchavati Auto,Opp.Anand Dham Derasar, S.G.Road, Ahmedabad.-380058.
The scheme is proposed to achieve optimum use of combined resources and substantial investment commensurate with the size of the market. The arrangement would enable the resultant company to entry into vital competitive market in a timely manner and expected to create favorable impact on earning per share in both short and long run.
It is submitted that vide order dated 23rd September, 2010 this Court in Company Application No.256 of 2010 passed an order to dispense with the meetings of the Equity Shareholders (as there being no secured creditor and unsecured creditor) of the Transferor company i.e. Prerna Builders Limited, having obtained and produced on record consent letters of Equity Shareholders of the Transferor Company on record.
It is further reported that earlier vide order dated 23rd September,2010 this Court in Company Application No.257 of 2010 passed an order to dispense with the meeting of Equity Shareholders (there being no secured creditor and unsecured creditor)of the petitioner of Company Petition No.210 of 2010 i.e. Prerna Stock brokers Private Limited having obtained and produced on record his consent letters of all the Equity Shareholders of the said Company.
It is submitted that vide order dated 23rd September, 2010, this Court in Company Application No.258 of 2010 passed an order to dispense with the meeting of Equity Shareholders of the petitioner of Company Petition No.211 of 2010 i.e. Prerna Hospitals Private Limited having obtained and produced on record his consent letters of all the Equity Shareholders(there being no secured and unsecured Creditor) of the said Company.
It is further submitted vide order dated 23rd September,2010, this Court in Company Application No.259 of 2010 passed an order to convene the meeting of the Equity Shareholders of the petitioner of Company Petition No.212 of 2010 i.e. Prerna Infrabuild Limited on 15/11/2010.
The transferee company as directed and required by the Order dated 23rd September,2010 had sent notices convening the meeting along with copy of the scheme and also the copy of the explanatory statement under section 393 of the Companies Act and the prescribed form of Proxy .The notice of the meeting of the Equity Shareholders was also advertised as per the order dated 23/09/2010 in 'Indian Express' English daily (Ahmedabad edition )and 'Sandesh' Gujarati daily (Ahmedabad edition) on 16th Oct,2010.
The meeting of the Equity Shareholders duly convened in accordance with the order dated 23/09/2010, was held on 15th November, 2010..The 47 Equity Shareholders present at the meeting (35 in person and 12 through proxy) voted in favour of proposed compromise or arrangement .The chairman of the meeting has filed a report before this court and the scheme was approved by majority of the members 100% in numbers and 100% in value of the members present and voted at the meeting.
As per the order of admission made on 24/12/2010, in all these petitions, the notices were issued to the Regional Director and to the Official Liquidator in case of Transferor Companies. Notices of petitions had also been published as directed by this Court in Times of India (English Daily) dated 13/01/2011 and Gujarat Samachar (Gujarati Daily) dated 14/01/2011 both Ahmedabad edition. Publication in the Government Gazette had also been dispensed with as directed in the order dated 24/12/2010. No one has come forward with any objection/s to the petitions.
Notices of admission of the petitions of the Transferor Companies have been served on the Official Liquidator attached to the High Court of Gujarat. The Official Liquidator has placed on record the reports dated 29th March, 2011 in respective petitions filed by the Transferor Companies i.e. (i) Prerna Builders Limited (ii)Prerna Stock Brokers Private Limited and (iii) Prerna Hospitals Private Limited .It is submitted that as per the report of Chartered Accountant ,the official Liquidator submits that affairs of the company have not been conducted in a manner prejudicial to the interest of its members or the pubic interest and as requested to direct the Company to preserve its books, papers and records for a period of 8 (eight) years from the date of sanctioning of the scheme of amalgamation and not to dispose off the records without prior permission of the Central Government under Section 396-A of the Companies Act, 1956 before the aforesaid period.
Having served with the notices of respective Company Petitions upon the Regional Director, a common Affidavit is filed by the Regional Director affirmed by Mr Uttam Chand Nahta , Regional Director ,North-Western Region Ministry of Corporate Affairs at Ahmedabad and following objections are raised in paragraph No.2 are, as under:
"2. That the observations of the Central Government on the Scheme are as under
(a) That as per the balance sheet as on 31-03-2010 of the transferor company No.3 i.e. Prerna Stockbrokers Private Limited ,the said company was doing business of trading in shares/securities .However the said business activities are not covered under any of the object clause of Memorandum of Association of the transferee company .The Hon'ble Court, may therefore, be pleased to direct the petitioner transferee company to amend its Memorandum of Association to enable it to carry out the activities being carried on by the Transferor company No.3 company after complying with the requirements of the provisions section 17/192/149(2A) of the Companies Act,1956
(b) It is submitted that the accounting entries/adjustment to be made in the books of accounts of the petitioner transferee company are stated at para no.9 of the scheme. It is further submitted that the Accounting entries/adjustment, as a consequences of the scheme of Amalgamation, are to be made as per Accounting Standard-14 notified by the central government under section 211(3A) of the Companies Act, 1956.The Hon'ble Court may, therefore, be pleased to direct the petitioner Transferee company to make adjustment in their books of accounts as per the Accounting Standard-14 notified by the Central Government r/w. section 211(3A) of the Companies Act,1956".
It is submitted that in pursuance to the above objections ,the transferee company files an undertaking that on sanction of the proposed scheme of amalgamation by Hon'ble High Court of Gujarat ,the transferee company shall "Follow the AS-14 (Accounting Standard related with Accounting for Amalgamation ) read with AS-22 (Accounting Standard Related with Accounting for Taxes on income in case of Amalgamation )"issued by Accounting standard Board of the Institute of Chartered Accountants of India, in letter and spirit while accounting of amalgamation and treatment of reserves of Transferor Companies and amend the object clause of its Memorandum Of Association ,if required, so as to incorporate the main object referred in object clause of the Memorandum of Association of Transferor companies.
Shri Harmish K.Shah, learned advocate appearing on behalf of the respective petitioners has submitted that Transferee Company i.e. Prerna Infrabuild Limited shall comply as per the undertaking submitted before this Hon'ble Court .Therefore the said objection would not survive.
No other adverse circumstances have been brought to the notice of this Court.
Having gone through the petitions and being satisfied that the amalgamation would be in the interest of the companies and their members and therefore prayer in terms of paragraph 16(a)of the Company Petition No 209 of 2010 to Company Petition No 211 of 2010 and paragraph 20(a) of the Company Petition no 212 of 2010 are hereby granted.
The petitions are disposed of accordingly. So far as the cost to be paid to the Central government counsel is concerned, the same is quantified at an amount of Rs.7500/- (Seven Thousand Five Hundred only) per petition. The same may be paid to Mr. P. S. Champaneri Asst. solicitor General in respect of Company Petition No 209/2010 and 210 of 2010 and Y.V.Vaghela for Company Petition No 211of 2010 and M.Iqubal A.Shaikh for Company Petition no 212 of 2010. So far as the cost to be paid to the Official Liquidator is concerned ,the same is quantified at an amount of Rs.5000/-(Rupees Five Thousand Only ).
[Anant S. Dave, J.] *pvv Top