Allowed

Maharashtra Energy Generation Infrastructure Limited v. ---

Bombay HC12 Apr 2013CSP/95/2013

Case brief

AI extract

What is this about?

The Court sanctioned a Scheme of Amalgamation and Arrangement between two power project companies under the Companies Act, 1956, after verifying compliance and minor clause amendments. The petitions were made absolute with directions to theRegistrar and authorities.

What did the court decide?

The Company Scheme Petitions Nos. 95 and 96 of 2013 were made absolute; costs awarded to the Regional Director and Official Liquidator.

Maharashtra Energy Generation Infrastructure Limited Vs… — Company and Corporate | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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COMPANY SCHEME PETITION NO 95 OF 2013

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CONNECTED WITH

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COMPANY SUMMONS FOR DIRECTION NO 75 OF 2013

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MAHARASHTRA ENERGY GENERATION INFRASTRUCTURE

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LIMITED ………… Petitioner / the Transferor Company

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AND

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COMPANY SCHEME PETITION NO 96 OF 2013

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CONNECTED WITH

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COMPANY SUMMONS FOR DIRECTION NO 76 OF 2013

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DAHANU SOLAR POWER PRIVATE LIMITED

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………… Petitioner / the Transferee Company

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In the matter of the Companies Act, 1956 (1 of 1956);

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AND

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In the matter of Sections 391 to 394 read with Sections 78, 100 to 103 of the Companies Act, 1956; AND

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In the matter of Scheme of Amalgamation and Arrangement

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Maharashtra Energy Generation Infrastructure Limited (“MEGIL” or “the Transferor Company”) with

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Dahanu Solar Power Private Limited (“DSPPL” or “the Transferee Company”) and their respective shareholders

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Called for Hearing

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Mr. Rajesh Shah with Mr. Chandrakant Mhadeshwar i/b Rajesh Shah & Co., Advocates for the Petitioners.

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Ms. R.N. Sutar Asst. Official Liquidator present in the Company Scheme Petition No. 95 of 2013.

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Mr. N.R. Prajapati i/b Mr. H. P. Chaturvedi for Regional Director in both the Company Scheme Petitions.

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CORAM: Ranjit More, J. DATE: 12^th April, 2013

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Heard counsel for the parties. No objector has come before the court to oppose the Scheme and nor any party has contravened any averments made in the Petition.

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The sanction of the Court is sought under Sections 391 to 394 read with Sections 78, 100 to 103 of the Companies Act, 1956, to the Scheme of Amalgamation and Arrangement of Maharashtra Energy Generation Infrastructure Limited with Dahanu Solar Power Private Limited and their respective shareholders.

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Learned advocate for the Petitioners states that the Petitioner in Company Scheme Petition No.95 of 2013 was incorporated with the main object to operate and set up power plant and Petitioner in Company Scheme Petition No.96 of 2013 is operating solar power project with a capacity of 40 MW in Jaisalmer district, Rajasthan. The Transferor Company is a wholly owned subsidiary of the Transferee Company. The rationale for the Scheme is to reduce administrative cost, remove multiple layer inefficiencies and achieve operational and management efficiency. The Transferor Company and the Transferee Company approved the said Scheme by passing Board Resolutions which are annexed to the respective Company Scheme Petitions.

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The learned counsel for the Petitioner in Company Scheme Petition No. 96 of 2013, states that the Scheme includes utilization of Securities Premium Account which shall be effected as an integral part of the Scheme and that the same does not involve either diminution of liability in respect of unpaid share capital and that it also does not involve compromise or arrangement with any creditors of the Petitioner Company and

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the procedure prescribed under section 101 (2) of the Companies Act, 1956 is dispensed with as per order dated 24^th January, 2013 passed in CSD No. 76 of 2013. However as per undertaking given by the Petitioner Company, a Special Resolution dated 23^rd January, 2013 is annexed being Exhibit ‘J’ to the Petition.

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

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The learned counsel appearing on behalf of the Petitioners has stated that the Petitioners have complied with all requirements as per directions of this Court and they have filed necessary affidavits of compliance in the Court. Moreover, Petitioner Companies undertake to comply with all statutory requirements, if any, as required under the Companies Act, 1956 and the Rules made there under. The said undertaking is accepted.

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The Regional Director has filed an affidavit dated 22/02/2013 stating therein that save and except as stated in paragraph 6 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 that:

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“That the Deponent further submits that:-

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a) In clause 2.3.2 of the Scheme it is stated that the excess arising on transfer of assets and liabilities as per clause 2.3.1 of the scheme would be credited to the General Reserve and in case of there being a deficit the same shall be debited by the Transferee Company to its General Reserve. In this connection it is submitted that the reserve arising out of the scheme shall transferred to “Capital Reserve Account” of the Transferee Company.

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b) Clause 2.3.5, 2.3.6 & 2.3.7 of the Scheme allows the Board of Director of the Company to make adjustment in the Books of Account of Transferee Company in respect of Securities Premium Account also. However, there is no time limit stated in those clauses. On enquiry with the Transferee Company the petitioner company has clarified through their Advocate vide letter dated 19/02/2013 which is annexed hereto and marked as Exhibit ‘D’ that such adjustment will be made up to the period of 31/03/2016. Hence, this clause be corrected suitably in the scheme.”

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The Learned advocate for the Petitioners states that :-

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(a) In reply to the aforesaid observations raised by the Regional Director in paragraph 6(a) of his Affidavit, the learned counsel for the Petitioner seeks leave of this Court to modify Clause 2.3.2 of the Scheme by substituting words ‘Capital Reserve’ in place of words ‘General Reserve’ wherever they appear in the sub-clauses of the Scheme. Leave to amend is granted. Amendment to be carried out within two weeks from the date of the order.

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(b) In reply to the aforesaid observations raised by the Regional Director in paragraph 6(b) of his Affidavit, the learned counsel for the Petitioner seeks leave of this Court to modify Clause 2.3.5 to 2.3.7 of the Scheme by adding words “but on or before March 31, 2016” after 1^st line of the said clauses which reads as “With effect from Appointed Date and for any of the financial years ending on or after the Appointed Date”. Leave to amend is granted. Amendment to be carried out within two weeks from date of the order.

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The Learned Counsel for Regional Director on instructions of Mr. M. Chandanamuthu, Joint 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 Company and also agree with

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proposed amendment sought by the Advocate for the Petitioner Company as mentioned hereinabove. The said undertaking is accepted.

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The Official Liquidator has filed his report dated 05/04/2013 in the Company Scheme Petition No. 95 of 2013 stating therein that the affairs of the Transferor Company have been conducted in a proper manner and that the Transferor Company may be ordered to be dissolved by this Court.

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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 has come forward to oppose the Scheme.

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Since all the requisite statutory compliances have been fulfilled, the Company Scheme Petition No.95 of 2013 filed by the Petitioner Company are made absolute in terms of prayer clauses (a), (c) & (d) and the Company Scheme Petition No.96 of 2013 filed by the Petitioner Company are made absolute in terms of prayer clauses (a), (b) & (d);

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

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The Petitioner Companies in both the Company Scheme Petitions to pay costs of Rs.10, 000/- each to the Regional Director, Western Region, Mumbai and the Petitioner in Company Scheme Petition No. 95 of 2013 to pay cost of Rs.10,000/- to the Official

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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 concerned authorities 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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(Ranjit More, J)

Maharashtra Energy Generation Infrastructure Limited v. ---

Case brief

What is this about?

What did the court decide?

Maharashtra Energy Generation Infrastructure 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

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