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In The Matter Of Companies Act, 1956, In The Matter Of Sections 391 To 394 Of The Companies Act, 1956, In The Matter Of New Quest Corporation Private Limited v/s In The Matter Of Scheme Of Amalgamation Of Best Bllt Biotech Limited With New Quest Corporation Private Limited And Other Respective Members And Creditors. New Quest Corporation Private Limited

    Company Petition 13 Of 2003
    Decided On, 18 June 2004
    At, High Court of Judicature at Bombay
    For the Appearing Parties: Bajpai, G. Mishra, Sunil Manohar, Advocates.

Judgment Text
Mohta V. Anoop, J.

( 1 ) THIS Company petition has been filed by the Transferee Company, known as New Quest Corporation Private Limited, for sanction of a scheme of amalgamation with the transferor Company, called as best Bilt Biotech Limited, by invoking the provisions of sections 391 to 394 of the Companies Act, 1956 (for short the Act') and the Companies Rules, 1959 (for short 'the Rules' ).

( 2 ) THE registered office of the petitioner, transferee company is at P. O. Ballarpur Paper Mills, District Chandrapur (Maharashtra ). The registered office of the transferor company is at Thapar House, 124, Janpath, Canought place, New Delhi.

( 3 ) AS per the objects and authorization by the memorandum of association, both the companies have decided and agreed to the present scheme of amalgamation (for short 'the scheme'), and accordingly, have taken effective steps as per the Act and the Rules.

( 4 ) BOTH the companies have taken into consideration the respective financial position as per the last balance sheet of the company. The petitioner transferee company have accordingly placed on the record its authorized share capital and preferential share details, including the relevant financial position as on 12-11-2002. The scheme in question takes into consideration all the necessary and essential elements of fair, sound and legal scheme. It also takes into consideration the other existing provisions of laws. It also takes into consideration the various aspects such amalgamation between the companies, including its liability, obligations, pending proceedings, effect of equity shares and its proportion, and ratio of the transfer of such shares. The scheme in question has been approved by the Board of Directors of the Company vide its resolution dated 26-6-2003.

( 5 ) THE present transferee company had filed Company Application No. 116/2003, wherein by the order dated 19-9-2003, direction was issued to convey the meeting of the equity share holders, the preferential share holders, the unsecured creditors by following a due process of law, as per the Act and the Rules. Notices were accordingly issued with requisite statement and materials and details as required under section 393 and other provisions of the Act. Notices were duly advertised and accordingly, the affidavit of service has been filed on the record. By unanimous decision in all the above referred meetings, the scheme in question has been passed. The affidavit with report as required was prepared and accordingly has been filed on the record. There is no objection of any person or authorities till this date, in respect of the scheme of amalgamation in question.

( 6 ) THE present company petition has been filed some time in November, 2003. Notices were duly served to the concerned authorities under section 394-A of the Act. All the formalities as per the procedure have been complied with. All the necessary affidavits of service and publication have been placed on the record along with the Company petition.

( 7 ) THE Regional Director, Department of Company Affairs having its office at Mumbai, by its affidavit dated 14-5-2003, stated and endorsed that the scheme is not prejudicial to the interest of the creditors and the shareholders. 7-A. There is no objection received to the scheme of amalgamation in question from any person, till this date, even on the record. The parties have also stated that they have not received any objections or affidavit from any person.

( 8 ) THE learned Counsel Mr. Sunil Manohar, appearing for the petitioner company pointed out and placed on the record, the order dated 18-5-2004, passed in Company Petition No. 393 of 2003, by the Hon'ble Delhi High Court, in the matter of same scheme of amalgamation, passed on the Company petition, filed by the transferor company at Delhi. After considering the merit of the same scheme the Hon'ble Delhi High Court has granted sanction to the scheme. This is an additional vital factor, which cannot be overlooked while sanctioning the same scheme. I am of the view that as once the scheme is sanctioned, either on Company petition filed by Transferor or Transferee, by competent Company Judge/court, such order of sanction is binding and has to be respected, unless grave illegality or breach of public policy is made out. Other Company Judge or Court cannot sit over as Appellate Court upon such sanctioned order. If only strong case is made out, any company Court of judge can differ or express its opinion on merit, but not otherwise. 8-A. As referred above, the scheme in question is in the interest of both the companies, and its share holders. The scheme is within the frame work of law. All the essentials, as referred above have been complied with. The reasons and circumstances as referred in para No. 4 of the petition have necessitated and justifies the purpose and object of such scheme. The Court while sanctioning such scheme cannot go and/or test the purpose and object of such commercially approved scheme.

( 9 ) THE court's jurisdiction in such matters is very limited and cannot be as that of an Appellate Court. In this case, unanimous decisions by all the concerned parties, after following due process of law further indicates that the scheme and the purpose of the same. In absence of any objections any interference by any

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other person, is uncalled for. ( 10 ) THE scheme is not prejudicial to any person and is not contrary to any public policy and the same is also endorsed by the competent authorities, like the Regional Director of Company Affairs, in question. The scheme appears to be just, fair and reasonable. ( 11 ) IN view of this, I am inclined to sanction the scheme as prayed for. ( 12 ) IN view of this Company petition is allowed in terms of prayer Clauses (a) to (d), with liberty. The petition is disposed of accordingly. No order as to costs. Order accordingly.