Allergan Pharmaceutical Development vs Nil on 29 March, 2012

[Cites 3, Cited by 0]

Karnataka High Court

Allergan Pharmaceutical Development vs Nil on 29 March, 2012

Bench: A.S.Bopanna

IATAKA AT BANGALORE

IN THE HIGH COURT OF KARI
DATED THIS THE 29™ DAY OF MARCH 2012.

BEFORE

THE HON'BLE MR. JUSTICE A.S. BOPANNA |

COMPANY PETITION NO. a1é 3/ 201 I.
IN 4
COMPANY APPLICATION NO. 1068/2011 ;

Between:

Allergan Pharmaceutical Dev é dlopment a
Center India Private Limited me
A Company incorporated under the Companies Act, 1956
Having its Registeréd office at No.37 ~ >
"Brahmananda Court", Ground Floor
(Eastern Wing), Laibagh Road :
Bangalore, Karnatak an 360 02" f:

_ .. Petitioner

(By Sri. Ramesh T. Adv. for M/s Universal Legal)
And:
ONIL

"By Sri. R: S. Mahadevan Ady. for OL.

& Sri, MLN, Manmohan CGC for ROC.)
Respondent

oO This :petition is filed under Sections 391 to 394 of the
"Companies Act, 1956, praying to Sanction the Scheme of
a Amalgamation at Annexure-A between the petitioner
-company/Allergan Pharmaceutical Development Center India
Pvt: Ltd. and Allergan Healthcare India Pvt. Ltd., and their
. 'respective shareholders and unsecured creditors, so as to be
".binding on the petitioner company and its shareholder
' and the unsecured creditors, the Transferee Company and their



respective Shareholders and unsecured creditors and all other
persons and etc.

This petition coming on for orders, this day, the Court
made the following: ee

The petitioner-Company is the Transferor. Company.
They had approached this Court seeking dispensation of
the meeting of the shareholders . and 'the 'unsecured
creditors. This Court "by order dated 174 1.2011 had
dispensed with the meeting. 7 Pursuaint thereto, the instant

petition has been filed. °,

2. Heard the learned éovinsel for the parties and
perused the petition papers. | .

AS. . On filing the instant petition, this Court had
os directed the petitioner to take out notice of the petition on
the. Regional Director and also the Official Liquidator and
further publication of the petition in the newspaper was

.. permitted. Accordingly, the notice of the petition has been

taken out in the 'Hindu' and 'Samyukta Karnataka' on

a *96.12.2011. No person has approached this Court



opposing the scheme. The petitioner is seeking approval to

the scheme as at Annexure-A to the petition.

4, The Regional Director has filed their response

to the instant petition. In the said resporise.. e, it has beerr.

stated as hereunder:

"I. As regards to Aceotinting Treatment: mentioned
in clause 11 of the 'scheme that the 'transferee
company appears te huve not. mentioned the specific
Method of Accounting beirig proposed to be followed
during the implementation. of the. scheme. In the
event of amalgamation of transferor company with
transferee company and -stanés dissolved without
being Lsound ° up, then the Pouling of Interest Method
oy Accounting: should he-follcowed and the difference,
if any, between the balue of assets and the value of
- liabilities. shoulel. adjusted to the "Capital Reserve"
as prescribed in, Accounting Standard -- 14 and not
io the: "General Reserve" as stated in clause 1 Ifiv) of
the scheiné. Ferice, the transferee company has to
Jile an affidavi it of undertaking of compliance of AS-

' 4 before this Hon'ble Court.

"2. >. Since the majority of share capital of transferor
company is held by its foreign holding company, the

. transferee company is required to comply with
"applicable provision of FEMA and FEM Regulations
.while issuing new equity shares to the equity

_ Stiareholders of transferor company in terms of
"scheme in the ratio of 1:1. Hence, the Tarsseree

_ company has to file necessary undertaking affidavit /
before this Hon'ble High Court.

3. In the Balance Sheet as at 31.3.2011 of the
Transferor company viz. Allergan Pharmaceutical
Development Centre India Put. Ltd., in schedule 8. |
there is a disclosure reported by the company that L



the company has inadvertently received a sum of
Rs.2,50,08,592/- from Allergan In the instant case.
USA in Feb.2011 which has been subsequently
refunded in April 2011. Hence, the transferor
company needs to file an affidavit in--r gard to
compliance with the provisions of FEMA- and F PEM
Regulations."

5. In reply to the query
Director, the vcithoner comers filed "their : aifidavit
indicating the compliance to that effect. tasofar as the
Official Liquidator, they had s sought for appoititinent of the
Chartered Accountant for verifying, the 'accounts of the
Transferor Company. Accordingly, M/s Ramanujam &
Company, Chartered Accounts had been appointed for the
said ouipoge, On cecsiving" | the report, the Official
Liquidator has j indicat ted. tot this Court that the affairs of
the Transferee Company have not been conducted in any
| thaniter prejudicial to the i nterest of the members of to the
public. .

6. "In view of the above, when the competent
"authorities have perused the scheme regarding which the
petitioner has sought approval and have not found

"anything prejudicial to the interest of the public and



5
insofar as the queries raised by the Regional Director when
the same has been answered by the affidavit. this, Court
should be prima facie satisfied with the scheme: " Even
otherwise, on perusal of the scheme, it is seen that insofar

Company, the continuity has been provided: in" the

--

Transferee Company and therefore their-interest is not effected.

7. Insofar as the shareholdéts, the provision made is contained in Ciiuse 10 of the Scheme and in any event, the shareholders' had given their consent at the first instance when the-petitioner had approached this Court by way of application. f hheréiore, considering these aspects of the matter, I ani of the opinion that the approval sought for . by the | petitionier requires to be granted.

8. However, insofar as the requirements as pointed ~~ Dy the Regional Director, though the petitioner has filed an PY &

- affidavit and had stated on oath that the same has been : complied with, the approval to the scheme would however 6 remain subject to the condition that they have in fact complied with the requirements in accordance with law. = In the result, the following :

(i) The petition is allowed.

(ij) The scheme as "at "Annexure-A for amalgamation of the peti lioner-Transferor Company with' the Transfereé Company is approved. | Nes

(iii) = In' view of the' sanction of | itie scheme, the petitioner-Company being the Transferor | Company 'shalt stand | dissolved without the order of winditig uj).

(iv}.. Copy ofthe order shall be filed with the Registrar of Companies within a period of _.thiriy days from the date of receipt of a copy

-of this order.

Sd/ "

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