In Re: Kirtilal Kalidas Diamonds Exports P. Ltd.

A.M. Khanwilkar, J.—Heard learned Counsel for the parties.

The sanction of the court is sought under Sections 391 to 394 of the Companies Act, 1956, to a scheme of amalgamation of Kirtilal Kalidas Diamonds Exports P. Ltd., and Kirtilal Kalidas Ornaments Exports P. Ltd., and Kirti Ornaments P. Ltd., and Dimexon Exports P. Ltd., and NK Polishers (transferor companies) with Dimexon Diamonds Ltd., the transferee company and their respective shareholders/partners.

Counsel appearing on behalf of the petitioners have stated that they have complied with all the requirements as per directions of this hon''ble court.

The only contention raised by the Regional Director in his affidavit in reply is that the petitioner-company may be directed to furnish an undertaking as regards compliance with Accounting Standard 14 issued by the Institute of Chartered Accountants of India. It is further stated that save as aforesaid the scheme is not prejudicial to the interest of creditors and shareholders and public.

Counsel appearing for the petitioner undertakes that necessary compliance of Accounting Standard 14 issued by the Institute of Chartered Accountants of India would be made and the said undertaking is accepted.

The official liquidator has filed report in Company Petitions Nos. 935 and 936 of 2007 stating that the affairs of Dimexon Exports P. Ltd., the fourth transferor company and Kirti Ornaments P. Ltd., the third transferor company have been conducted in a proper manner.

Mr. Sethi, learned Counsel appearing for the petitioners further states that the fifth transferor company, i.e., N. K. Polishers is an partnership firm being an unregistered company within the meaning of Section 582(b) of the Companies Act, 1956 and was registered on August 4, 1998, as partnership firm and in consequence thereof the certificate of registration was issued by the Registrar of Firms, Mumbai. It is further stated that the definition of partnership firm under the Companies Act, 1956, is defined in Section 582(b) which envisage that an unregistered company shall include any partnership, association or company consisting of more than seven members at the time when the petition for winding up of the partnership, association or company, as the case may be, be presented before the Tribunal. In the instant case, the petitioner firm has eight partners who have consented to the proposed scheme of amalgamation. The scheme was also approved at a partners'' meeting held on October 10, 2007 and individual consent letters of all the partners is annexed to the affidavit in support filed of the company application filed on behalf of N.K. Polishers.

It is further stated that under Chapter V, Section 390 (Sections 391 and 393)- (a) defines the expression "company7'' to means any company liable to be wound up under this Act. In terms of the aforesaid provisions, the petitioner firm/company has filed the application/petition for merger of the petitioner firm/company with the transferee company and transferor company No. 5, i.e., N.K. Polishers can accordingly be merged with the transferee company under the provisions of Sections 391 to 394 of the Companies Act, 1956.

Mr. Sethi, learned Counsel for the petitioners, further states that in so far as transferor company Nos. 1 and 2, namely, Kirtilal Kalidas Diamonds Exports P. Ltd. and Kirtilal Kalidas Ornaments Exports P. Ltd., the petitions were filed before the Madras High Court and vide order dated February 15, 2008, the scheme has been sanctioned.

Upon perusal of the entire 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 any public policy. None of the parties concerned have come forward to oppose the scheme.

Since all the requisite statutory compliances have been fulfilled, Company Petitions Nos. 935 to 938 of 2007 are made absolute in terms of prayer clause (a). The transferor company No. 5 shall accordingly stand dissolved and shall be succeeded by the transferee company. The Registrar of Firms, Maharashtra State, Mumbai, shall transfer all the documents relating to the transferor company No. 5 to the Registrar of Companies, Mumbai, who shall thereafter register with him on the file maintained by him in relation to the transferee company and consolidate the files of the transferor company No. 5 accordingly.

The transferee company to lodge copy of this order and the scheme with the concerned Superintendent of Stamps for the purpose of adjudication of stamp duty, payable, if any, on the same within 30 days of obtaining the authenticated and/or certified copy of this order.

The petitioners in all the company petitions to pay cost of Rs. 5,000 each to the Regional Director. The petitioner in Company Petitions Nos. 935 and 936 of 2007 to pay to the Official Liquidator, High Court, Bombay, sum of Rs. 5,000. Costs to be paid within four weeks from today. The petitioner to comply with all statutory compliances, applicable, if any.

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

All concerned authorities to act on a copy of this order and scheme duly authenticated by the Company Registrar, High Court, Bombay.