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2016 (2) TMI 722 - GUJARAT HIGH COURT

2016 (2) TMI 722 - GUJARAT HIGH COURT - TMI - Scheme of Amalgamation - Restructuring of capital - Held that:- Taking into account the contentions raised in the affidavits and reply affidavits, and the submissions advanced during the course of hearing, this Court is of the view that the observations made by the Regional Director, Ministry of Corporate Affairs, are answered satisfactorily. It appears that the present Scheme of Arrangement is in the interest of the shareholders and creditors of all .....

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ONER : MR. BANDISH SOPARKAR, ADVOCATE FOR MRS SWATI SOPARKAR, ADVOCATE FOR THE RESPONDENT : MR. KSHITIJ AMIN, CENTRAL GOVERNMENT STANDING COUNSEL FOR MR DEVANG VYAS, ADVOCATE ORAL ORDER 1 These petitions are filed by two companies for the purpose of obtaining the sanction of the Court to a Scheme of Amalgamation of Sophos Technology Solutions India Private Limited, the Transferor Company with Sophos Technologies Private Limited, (erstwhile Cyberoam Technologies Private Limited) the Transferee Co .....

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roup, STSIPL, the Transferor Company is providing services related to sales and marketing of Sophos products in the Indian market on behalf of Sophos Group. STPL, the Transferee Company is currently engaged in the development, maintenance and distribution of Unified Threat management ( UTM ) products and solutions. The Board of Directors of these Companies proposed the amalgamation of these companies so as to achieve synergic benefits. It is envisaged that the proposed amalgamation will enable a .....

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t in the Reduction of existing Equity Share Capital of the Transferee Company. The said Reduction of Capital is consequential and is proposed as an integral part of the proposed Scheme of Arrangement. However, in case of Cumulative Compulsorily Convertible Preference Shares, considering the issue of new shares towards consideration, there will not be Net Reduction of Capital. 4 It has been submitted that vide orders dated 26th November 2015, passed Company Application No. 363 and 364 of 2015, th .....

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f the Transferee Company. It was submitted by the Transferee Company that the rights and interests of the Unsecured Creditors of the Transferee Company are not affected as a result of the Scheme as both the companies are profitmaking companies and the net worth of the Transferee Company, in the PostScheme scenario, shall be approximate ₹ 112.23 crores. 5 It was submitted by the Petitioner Transferee Company that the proposed reduction, as envisaged vide clause 5.5 and 7 of the Scheme, does .....

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le 48 to 65 of the Companies (Court) Rules 1959. 6 The substantive petitions for the sanction of the Scheme were filed by both the petitioner companies which were admitted on 09th December 2015. The notice for the hearing of the petitions was duly advertised in the Ahmedabad editions of the English daily newspaper Indian Express and the Gujarati daily newspaper Sandesh , dated 22.12.2015. The publication in the Government gazette was dispensed with, as directed in the said orders. Pursuant to th .....

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erved by the Official Liquidator that the affairs of the Transferor Company have been conducted within its object clauses and have not been conducted in any manner prejudicial to the interest of the members or public interest, hence the petitioner transferor company may be dissolved without following the process of winding up. However, the Official Liquidator has requested that directions be issued to preserve the books of accounts, papers and records and not to dispose of the same without prior .....

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s statutory liabilities. The attention of this Court is drawn to a factual error in the report filed by the Official Liquidator. Paragraph 12 of the report refers to ₹ 40,29,22,694/as the value of the intangible assets of the Transferor Company. It has been pointed out on behalf of the Petitioner Company that the same is factually the value of non current investments of the company and not intangible assets. The said error is noted. However, it has no effect on these proceedings and, hence .....

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ourt is drawn to the common Additional Affidavit dated 29th January 2016 filed by Mr. Rakesh Mistry, the Director and Authorised Signatory of the petitioner Companies, whereby the said issues have been dealt with. 10 This Court has heard submissions made by the learned counsel appearing for the Central Govt. and Mr. Bandish Soparkar, learned advocate appearing for Mrs. Swati Soparkar, learned advocate for the petitioners, with regard to the said observations; (I) The observation made vide paragr .....

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ble provisions of the said Acts as and when necessary. (II) The next observation of the Regional Director vide paragraph 2(e) pertains to the letter dated 31st December 2015 sent by the Regional Director to the Income Tax Department, inviting their objections, if any. Since the statutory period of 15 days, as envisaged by the relevant circular of the Ministry of Corporate Affairs is over, it can be presumed that the Income Tax Dept. has no objection to the proposed Scheme of Arrangement. The pet .....

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mpanies Act, 1956, for the resultant Reduction of the Equity Share Capital of the Company and the specific prayers for the confirmation of the reduction of capital and approval of the said minutes. It has been submitted by the petitioner that the requisite rectifications have been carried out pursuant to the said order. 12 Considering the above facts and circumstances and taking into account the contentions raised in the affidavits and reply affidavits, and the submissions advanced during the co .....

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