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2016 (4) TMI 358 - GUJARAT HIGH COURT

2016 (4) TMI 358 - GUJARAT HIGH COURT - TMI - Scheme of Amalgamation - Held that:- The amalgamation under the proposed Scheme appears to be in the interest of the companies and their members and creditors, this Court is of the view that the Scheme deserves to be sanctioned. The Arrangement otherwise seems to be appropriate and hence, it is required to be sanctioned with a specific observation that the sanctioning of the Scheme would not absolve anyone who is otherwise liable for any responsibili .....

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FOR THE PETITIONER : MR DHARMESH V SHAH, ADVOCATE FOR THE RESPONDENT : MR. KSHITIJ AMIN, CENTRAL GOVERNMENT STANDING COUNSEL FOR MR DEVANG VYAS, ADVOCATE ORAL ORDER 1 These Petitions have been filed by the respective Petitioner Companies for the sanctioning of the Scheme of Amalgamation of GEA Pharma System (India) Private Limited (GPSIN) (Transferor Company) with GEA Process Engineering (India) Private Limited (GPIN) (Transferee Company), whereby all the assets and liabilities of the Transferor .....

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Hon ble Court has dispensed with that the holding of the meetings of the Shareholders and sole Creditor of the applicant Transferor Company and has further directed that a meeting of the Unsecured Creditors of the Transferor Company shall be convened and held on Saturday, the 23rd day of January, 2016. It is directed that the Chairman s Report regarding the holding of the meetings and the approval of the Scheme of Amalgamation by the Unsecured Creditors of the Company, be placed on record. It is .....

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Creditors present in the meeting, voted in the favour of the Scheme and, therefore, the report of the Chairman of the meeting has stated so in the affidavit dated 25.01.2016. In the case of the Transferee Company, this Court has passed an order dated 23.12.2015, in Company Application No. 389 of 2015, which is produced at Annexure D to the present petition. The Court has directed that the holding of the meeting of the Shareholders and Creditors of the applicant company is not necessary and the .....

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e 31st December, 2015, in the said newspapers. An affidavit dated 13th January, 2016 regarding service and publication of notice of the hearing of the petition was filed by Mr. Ninad Raje. After the meeting was held on 23rd January, 2016 the report of the Chairman has been filed on 25.01.2016. 5 Pursuant to the notice issued by this Court, an affidavit has been filed by Mr. Shambhu Kumar Agarwal, Regional Director, Ministry of Corporate Affairs, NorthWestern Region dated 10th March, 2016, wherei .....

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ner Transferee Company to place on records all the facts as to the convening of the meeting of the sole preference shareholder of the Transferee Company. 6 In response thereto, the petitioners have filed an affidavit dated 16.03.2016, wherein the above observations have been replied to, as below: I) d) Company has complied with the provisions of FEMA Compliances and RBI guidelines. There are no pending prosecutions/charges/litigations against the petitioner Transferee Company. II) e) The Petitio .....

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ewith annexed as Annexure A . III) f) GEA Process Engineering A/S is the only preference shareholder of the Company. We have already at the time of filing application submitted the consent letter of preference shareholder approving the amalgamation of GEA Pharma Systems (India) Private Limited with GEA Process Engineering (India) Private Limited. Based on the consent letter order dated December 23, 2015 states that meeting of Shareholders of the Company is dispensed with. It is further submitted .....

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r Balance Sheet has not been reassessed and written down as at the Balance Sheet Date despite absence of virtual certainty as to realization thereof against future taxable income for the F.Y. 201011 B Nonacknowledgement of claims of lease rent made by ₹ 3,600,000 to holding Company for the F.Y. 201011. C Diversion of short term funds towards long term purpose for F.Y. 201011 to 201415 and no clarification/explanation given by the Board of Directors of the Company as mentioned at paragraph .....

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d that current assets value is sufficient to meet the future profitability of the Company. II B) The said lease rent refers to land under ownership of the Holding Company which is occupied by the Company vide Memorandum of Understanding dated 15.03.2010. Company has agreed to pay rent for usage of the referred land subject to withdrawal of lien by IDBI Bank Ltd., in whose favour mortgage has been registered with Registrar of Companies, Gujarat. IDBI Bank Ltd., has not withdrawn lien and conseque .....

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nce the local Indian Arms are permitted to use short term funds for long term projects. The Company has not used short term funds for long term projects/purpose for the Financial Year 201314 and there onwards. Also such reporting is withdrawn by Companies (Auditor s Report) Order, 2015 and Companies (Auditor s Report) Order, 2016 (Draft). 9 In paragraphs No. 15 and 16 the Official Liquidator mentions that the affairs of the company have not been conducted in a manner prejudicial to the interest .....

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ubmissions advanced by learned counsel for the respective parties and being satisfied that the amalgamation under the proposed Scheme appears to be in the interest of the companies and their members and creditors, this Court is of the view that the Scheme deserves to be sanctioned. The Arrangement otherwise seems to be appropriate and hence, it is required to be sanctioned with a specific observation that the sanctioning of the Scheme would not absolve anyone who is otherwise liable for any resp .....

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