Allowed

Huntsman Advanced Materials (India) Private Limited v. -

Bombay HC13 Sept 2013CSP/847/2012

Case brief

AI extract

What is this about?

The Court sanctioned a Scheme of Amalgamation involving four Huntsmans entities under the Companies Act, 1956. The order granted subject to compliance with High Court of Gujarat approval for certain transferors and FEMA/RBI regulations regarding foreign shareholders, alongside standard registrar filings and cost payments.

What did the court decide?

Petition No. 847 of 2012 made absolute; Petition No. 848 of 2012 made absolute subject to Gujarat High Court sanction.

Huntsman Advanced Materials (India) Private Limited Vs - — Company and Corporate | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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COMPANY SCHEME PETITION NO. 847 OF 2012. CONNECTED WITH COMPANY SUMMONS FOR DIRECTION NO. 802 OF 2012.

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HUNTSMAN ADVANCED MATERIALS (INDIA) PRIVATE LIMITED, ....Petitioner/ Second Transferor Company. WITH

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COMPANY SCHEME PETITION NO. 848 OF 2012. CONNECTED WITH

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COMPANY SUMMONS FOR DIRECTION NO. 803 OF 2012.

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HUNTSMAN INTERNATIONAL (INDIA) PRIVATE LIMITED, ....Petitioner/ Transferee Company.

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In the matter of the Companies Act, 1

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of 1956;

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AND In the matter of Sections 391 to 394 of

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the Companies Act, 1956;

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AND

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In the matter of Scheme of Amalgamation between BARODA TEXTILE EFFECTS PRIVATE LIMITED (‘BTE’)

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AND

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HUNTSMAN ADVANCED MATERIALS

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(INDIA) PRIVATE LIMITED (‘HAM’)

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AND

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HUNTSMAN PERFORMANCE PRODUCTS (INDIA) PRIVATE LIMITED ('HPPIPL')

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WITH

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HUNTSMAN INTERNATIONAL (INDIA) PRIVATE LIMITED, the Transferee Company (‘HIIPL’)

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AND

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each of their respective Shareholders

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Called for hearing

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Mr. Rajesh Shah i/b Trilegal, Advocate for the Petitioners in both Petitions.

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Mrs. R. N. Sutar, Asstt. Official Liquidator, present in CSP No. 447 of 2013

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Mr. R. C. Master i/b Mr. H. P. Chaturvedi for Regional Director in both the Petitions.

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CORAM: N. M. Jamdar, J.

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DATE:13^th September, 2013

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PC:

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Heard counsel for the parties.

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The sanction of the Court is sought to a Scheme of Amalgamation of BARODA TEXTILE EFFECTS PRIVATE LIMITED and HUNTSMAN ADVANCED MATERIALS (INDIA) PRIVATE LIMITED and HUNTSMAN PERFORMANCE PRODUCTS (INDIA) PRIVATE LIMITED with HUNTSMAN INTERNATIONAL (INDIA) PRIVATE LIMITED, under Sections 391 to 394 of the Companies Act, 1956.

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Learned Counsel for the Petitioner Company states that the Petitioner Company CSP NO. 847 OF 2012 is presently carrying on the business of trading and manufacturing of epoxy resins, adhesives and hardeners and Petitioner Company 848 OF 2012 is presently

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carrying on the business of 'trading of textile effects' and manufacture of 'polyurethanes'. The proposed Scheme of Amalgamation will enable the Transferee Company to consolidate the businesses and lead to synergies in operation and create a stronger financial base and result in economy of scale and reduction in overheads, administrative, managerial and other expenditure and optimal utilization of resources and also will result in significant reduction in the multiplicity of legal and regulatory compliances required at present to be carried out by the Transferor Companies and the Transferee Company. The Petitioner Companies had approved the said Scheme of Amalgamation by passing the Board Resolutions which are annexed to the respective Company Scheme Petitions.

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Learned Advocate for the Petitioner Companies further stated that the First and Third Transferor Companies have their registered office in state of Gujarat and accordingly have filed respective Petition before the Gujarat High Court and the same is pending for final hearing.

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The learned Advocate for the Petitioner further states that, Petitioner Company has complied with all the directions passed in Company Summons for Direction and that the Company Scheme Petition have been filed in consonance with the orders passed in respective Summons for Directions.

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Counsel appearing on behalf of the Petitioner Company has stated that the Petitioner has complied with all requirements as per directions of this Court and that the Petitioner Company has filed necessary Affidavits of compliance in the Court. Moreover, Petitioner Company undertakes to comply with all statutory requirements, if any, as required under the Companies Act, 1956 and the Rules made thereunder. The undertakings given by the Petitioner companies are accepted.

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The advocate appearing on behalf of the Petitioner Company tendered an affidavit dated 12/09/2013 in CSP 847 of 2012 interalia stating that one of the Unsecured Creditors Viz. Reach (Cargo Movers) Pvt. Ltd. of the Petitioner Company has filed a letter on 4/2/2013 in the Hon’ble High Court for a claim of Rs. 38,189/- and interest thereon. In view of above Advocate for the Petition further stated that they have settled the matter and paid amount of Rs. 45,189/- towards full and final settlement of the claim of said unsecured creditor and the said unsecured creditor have given No objection letter dated 5/9/2013 which is annexed and marked as exhibit A to the said Affidavit.

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The Official Liquidator has filed his report on 05/04/2013 in Company Scheme Petition No. 847 of 2012 stating that the affairs of the Second Transferor Company has been conducted in a proper manner and that the Transferor Company may be ordered to be dissolved.

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The Regional Director has filed an Affidavit dated 04/08/ 2013 stating therein that save and except as stated in paragraphs 6 (a) and (c) of the said Affidavit, it appears that the Scheme is not prejudicial to the interest of shareholders and public. In paragraph 6 of the said Affidavit, it is stated as under:

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a) The Registered office of First and Third Transferor Company is situated in the State of Gujarat. Hence, the present Scheme of Amalgamation between the Transferor Companies and Transferee Company will be subject to the condition of obtaining similar approval from Hon’ble High Court of Gujarat in respect of First and Third Transferor Company. b) The shares of the Second Transferor Company are held by foreign body corporate/foreign shareholders/non resident Indian. Hence, while giving effect to the scheme, by issuing shares by the Transferee Company to the shareholders of Second Transferor Company, the Transferee Company may be directed to comply with FEMA /RBI regulations as applicable in this regards.

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c) Clause 11.2 of the scheme deals with amendment in Clause IIIA (1) of the Memorandum of Association of the Transferee Company. In this connection, the Transferee Company may be directed to comply with provision of section 40 read with section 18 of the Act and to file amended copy of Memorandum of Association alongwith Form No. 21 with Registrar of Companies.

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So far as the observations in paragraph 6 (a) of the Affidavit of Regional Director is concerned, counsel appearing on behalf of the Petitioner Company states that the First and Third Transferor Companies have filed respective Company Petitions before High Court of Gujarat and same is pending for final hearing.

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So far as the observation in paragraph 6 (b) of the Affidavit of Regional Director is concerned, the Petitioner Company through its counsel undertakes that while giving effect to the scheme, by issuing

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shares by the Transferee Company to the shareholders of Second Transferor Company. The Transferee Company will comply with the FEMA /RBI regulations as applicable in this regards.

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So far as the observation in paragraph 6 (c) of the Affidavit of Regional Director is concerned, the Transferee Company through its counsel undertakes that the Transferee Company may be directed to comply with provision of section 40 read with section 18 of the Act and to file amended copy of Memorandum of Association alongwith Form No. 21 with Registrar of Companies

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The Learned Counsel for Regional Director on instructions of Mr. Rajesh Dalmia, Deputy Director in the office of the Regional Director, Ministry of Corporate Affairs, Western Region, Mumbai states that they are satisfied with the undertaking given by the Advocate for the Petitioner Companies. The undertakings given by the Petitioner companies are accepted.

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From the material on record, the Scheme appears to be fair and reasonable and does not violate of any provisions of law and is not contrary to public policy. None of the parties concerned has come forward to oppose the Scheme in the court except as mentioned herinabove.

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Since all the requisite statutory compliances have been fulfilled, Company Scheme Petition Nos. 847 of 2012 is made absolute in terms of prayer clauses (a) and (c) and Company Scheme Petition

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Nos. 848 of 2012 is made absolute in terms of prayer clauses (a) and (c), subject to sanction of the Gujrat High Court.

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The Petitioner Companies to lodge a copy of this order and the Scheme duly authenticated by the Company Registrar, High Court (O.S.), Bombay, with the concerned Superintendent of Stamps, for the purpose of adjudication of stamp duty payable, if any, on the same within 60 days from the date of the order.

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Petitioners are directed to file a copy of this order alongwith a copy of the Scheme with the concerned Registrar of Companies, electronically, along with E-Form 21 in addition to physical copy as per relevant provision of the Act.

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The Petitioners to pay costs of Rs.10,000/- each to the Regional Director, Western Region, Mumbai, High Court, Bombay and and the Petitioners in the Company Scheme Petition No. 847 of 2012 to pay cost of Rs 10,000/- each to the Official Liquidator, High Court, Bombay. Costs to be paid within four weeks from the date of the order.

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

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All authorities concerned to act on a copy of this order along with Scheme duly authenticated by the Company Registrar, High Court (O. S.), Bombay.

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(N. M. Jamdar, J.)

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Huntsman Advanced Materials (India) Private Limited v. -

Case brief

What is this about?

What did the court decide?

Huntsman Advanced Materials (India) Private Limited v. -

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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