Acc Concrete Limited vs Unknown
2012 Latest Caselaw 149 Bom

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     ORDINARY ORIGINAL CIVIL JURISDICTION
                    COMPANY SCHEME PETITION NO. 605 OF 2012




                                                                                             
                                   CONNECTED WITH
               COMPANY SUMMONS FOR DIRECTION NO. 491 OF 2012




                                                                     
                                             In the matter of the Companies Act, 1956;




                                                                    
                                                                      And

                                             In the matter of Petition under Sections 391 to
                                             394, of the Companies Act, 1956;




                                                    
                                                                      And
                                    ig       In the matter of the Scheme of Amalgamation of
                                             ACC Concrete Limited
                                  
                                             with

                                             ACC Limited.
            

ACC Concrete Limited                                  )
[CIN: U51909MH2007PLC170646], a company               )
         



incorporated under the Companies Act, 1956,           )
having its registered office at Cement House,         )
121, Maharshi Karve Road, Mumbai 400 020              )                  ...Petitioner





Mr. Zal Andhyarujina with Mr. Tapan Deshpande, Advocates instructed by Amarchand &

Mangaldas & Suresh A. Shroff & Co., Advocates for the Petitioner.





Mr. R. C. Master i/b. Dr. T. C. Kaushik for the Regional Director.

Mr. K. S. Reddy with Ms. Rupa Sutar, Assistant Official Liquidator present.

                                                                 Coram : Anoop V. Mohta, J

                                                                        Date: 9th October, 2012




                                                                                                    1



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1.

Heard learned Counsel for the parties. No-one else appeared.

2. The sanction of the Court is sought to the Scheme of Amalgamation of ACC Concrete

Limited, the Transferor Company with ACC Limited, the Transferee Company, under

Sections 391 to 394 of the Companies Act, 1956.

3. Counsel appearing on behalf of the Petitioner Company has stated that the Petitioner

Company has complied with all requirements as per the directions of this Court and

they have filed necessary Affidavits of compliance in the Court. The Petitioner

Company also undertakes to comply with all statutory requirements, if any, as

required under the Companies Act, 1956 and the Rules made thereunder. The said

undertaking is accepted.

4. The Regional Director has filed an Affidavit dated 18th September, 2012, stating

therein, that save and except as stated in para 6, it appears that the Scheme is not

prejudicial to the interest of shareholders and public. In paragraph 6 of the Affidavit it

is stated that:

"6. That the Deponent further submits that, Transferee Company was investigated

under the provisions of section 235 of the Act, vide order passed by the

Ministry of Corporate Affairs in file No. 3/88/2011-CL-II dated 02/06/2011 by

SFIO. The report submitted by the SFIO is under further consideration before

the appropriate authority. The Central Government, Regional Director,

Registrar of Companies reserve their rights to take appropriate action if any

arising out of investigation report submitted by SFIO to Ministry of Corporate

Affairs."

5. There is no dispute that the Transferee Company will remain in existence even after

the post sanctioned scheme. There is no substance in the apprehension so raised. The

Transferee Company, inspite of this, permitted the concerned Authorities to take

appropriate action or steps, if any. The pendency of such investigation in no way

should be the reason not to sanction the scheme. As regards objection set out in

paragraph 6, the Central Government, Regional Director and Registrar of Companies

are at liberty to take appropriate action if any, against the Transferee Company.

6. The Official Liquidator has filed his report dated 26th September, 2012, stating that

the affairs of the Petitioner Company have been conducted in a proper manner and

that the Petitioner Company may be ordered to be dissolved.

7. The Counsel for the Petitioner states that in response to the individual notice of

hearing of the Petition to the unsecured creditor, Advocate for the Petitioner Company

has received letter dated 1st September, 2012 from GMK Concrete Mixing Private

Limited raising its objection to the Petition on the grounds of outstanding payment

from the Petitioner Company for an amount of Rs. 92,90,635/-. The Counsel for the

Petitioner states that the claim made by the aforesaid unsecured creditor is a

contractual dispute for balance payment withheld by the Petitioner Company for non-

performance and breach of contractual terms by the aforesaid unsecured creditor and

consequential loss suffered by the Petitioner Company and is disputed by the

Petitioner. The Counsel for the Petitioner further states that the said unsecured

creditor has neither served an affidavit raising his alleged objection upon the

Petitioner or its Advocates nor has filed its Affidavit of objection in this Hon'ble

Court nor has given notice in terms of Rule 34 of the Company Court Rules 1959.

The Counsel for the Petitioner further submitted that though this Hon'ble Court is not

the adjudicating authority to adjudicate the claims under Sections 391-394 of the

Companies Act, 1956, in paragraph 18 of the Petition it is stated that the aggregate

assets of the Petitioner Company and the Transferee Company are more than

sufficient to meet all their respective external liabilities and the Scheme will not

adversely affect the rights and interest of any of the creditors of any company in any

manner whatsoever and also that pursuant to the amalgamation of the Petitioner

Company with the Transferee Company, the Transferee Company's debt repayment

capacity will not be adversely affected as the , the amalgamated entity will have an

excess of assets over liabilities and hence will not adversely affect the rights and

interest of any of the secured creditors and unsecured creditors, of the amalgamated

entity. Further Clause 6 (a) of the Scheme states that upon coming into effect of the

Scheme and with effect from Appointed Date all debts and liabilities comprised in the

Undertaking of the Petitioner Company shall pursuant to sanction of the Scheme be

and stand transferred to and vested in the Transferee Company. The Counsel

appearing for the Petitioner further states that in any event the Scheme does not affect

the rights of unsecured creditors of the Petitioner/ Transferor Company. It will be

open to the unsecured creditors of the Petitioner/ Transferor Company including the

above mentioned unsecured creditor, to pursue legal remedy as may be advised for

recovery of their dues. Even otherwise, there is nothing on record to show that the

creditors will be affected if the scheme is sanctioned. [ Sanvijay Alloys Pvt. Ltd. -

2004 Company Cases Vol. 122 page 754 ]

8. On hearing the submission made by the Advocate for the Petition, I do not see any

substance in the objection of the said unsecured creditor informed to the Petitioner.

Further in spite of being on notice the said unsecured creditor of the Petitioner

Company has not appeared before this court neither has filed his objection before this

Court. Thus the objection is without merit and is rejected. As mentioned above the

rights of the unsecured creditor of the Petitioner Company are not affected From the

material on record, the Scheme appears to be fair and reasonable and is not violative

of any provisions of law and is not contrary to public policy. None of the parties

concerned have come forward to oppose the Scheme in the Court.

9. I am inclined to observe that all the experts/professionals include financers, auditors,

chartered accountants, bankers, creditors, financial institutions apart from unanimous

majority decisions to support the scheme, submitted their report and opinion and

accepted the scheme.

10.

It is necessary to note that in this competitive market, the corporate world with

exhaustive strategies is a must. Companies know how to make or arrange and/or

adjust their business to run with the national and international markets. Third person

may not be in a position to provide them business strategies and above all, companies

know their respective shareholders' need and, therefore, may not be bound by the

Rules and/or opinion and/or objection, if any expressed by the third persons. As

noted, there is no illegality and/or unfairness, unreasonableness. The scheme is well

within the frame work of law and the record and as it is difficult for the Court to deal

and decide the business strategies as it is not the court's domain. There is no reason

not to accept the scheme so filed subject to the averments made in the above

paragraphs.

11. Since all requisite statutory compliances have been fulfilled, Company Scheme

Petition No. 605 of 2012 filed by the Petitioner Company is made absolute in terms of

prayer clauses (a) and (b) of the said Petition;

12. The Petitioner Company to file a copy of this order alongwith a copy of the Scheme

of Amalgamation duly authenticated by the Company Registrar, High (O.S.),

Bombay, with the concerned Registrar of Companies, electronically, along with e-

Form 21 in addition to physical copy within 30 days from the date of issuance of the

order by the Registry.

13. The Petitioner Company to lodge a copy of this order alongwith a copy of the Scheme

of Amalgamation duly authenticated by the Company Registrar, High (O.S.),

Bombay, with the concerned Superintendent of Stamps, for purposes of adjudication

of stamp duty payable, if any, on the same within 60 days from the date of the order.

14.

The Petitioner Company to pay costs of Rs. 10,000/- each respectively, to the

Regional Director and to the Official Liquidator, High Court Bombay. Costs to be

paid within four weeks from the date of the order.

15. Filing and issuance of the drawn up order is dispensed with.

16. All authorities concerned to act on a copy of this order along with Scheme attached

thereto, duly authenticated by the Company Registrar, High Court (O.S.), Bombay.

(Anoop V. Mohta, J)