Judgment:
Jayant Patel, J.
1. The present petition is preferred for sanctioning the Scheme of compromise/arrangement and it is further prayed to declare the same to be binding on the petitioner Company and existing lenders of erstwhile Vadodara-Halol Toll Road Company Limited and other persons concerned under the Scheme.
2. It appears that initially there was a scheme of amalgamation of Vadodara-Halol Toll Road Company Limited and Ahmedabad-Mehsana Toll Road Company Limited with Gujarat Toll Road Investment Company Limited. The said scheme came to be considered by this Court in the proceedings of Company Petition No. 52 of 2005 and ultimately as per the judgement dated 11.5.2005 passed by this Court (Coram: K.A. Puj, J.) the scheme was sanctioned. The pertinent aspect which may be relevant and shall be dealt with hereinafter would be that at the time when this Court (Coram: K.A. Puj, J.) delivered the judgement, it was undertaken on behalf of the transferee Company, which is the petitioner herein to pay the requisite fees as well as the stamp duty on the scheme being sanctioned by the Court.
3. It appears that thereafter the Company Application No. 162 of 2005 was preferred by the petitioner Company for holding the meeting of the existing lenders for the purpose of considering the scheme of compromise and/or arrangement between the applicant Company and its existing lenders. In the said Application this Court ((Coram: K.A. Puj, J.) as per the order dated 5.5.2005 directed for holding of the meeting and accordingly the meeting has been held on 21.6.2005 and the report is placed on record dated 1.7.2005 by Shri Arun K. Shah, who was appointed as the Chairman for such meeting. As per the proceedings of the meeting the proposed scheme was approved by more than the requisite statutory majority of the existing lenders of the concerned Company.
4. In the present petition, on 11.7.2005 this Court (Coram: K.A. Puj, J.) had passed the order for admission and also for issuing advertisement in the English daily newspaper Indian Express Ahmedabad edition as well as Gujarati newspaper daily Divya Bhaskar Ahmedabad edition and it was also ordered to issue notice to the Central Government through Regional Director, Department of Company Affairs.
5. It appears that in pursuance of the order passed by this Court, the advertisement was published in the aforesaid two newspapers and copies of such advertisements are produced together with the affidavit of Shri Mukund Sapre., authorised Signatory of the petitioner Company dated 22.7.2005. No objection in response to the public advertisement is brought to the notice of this Court, nor is there any material before this Court regarding objection by any person concerned in response to the advertisement concerned to the present petition.
6. On behalf of the Central Government, Mr. Malkan, learned Standing Counsel had placed on record the communication received by him from the Registrar of Companies, Gujarat State on the basis of the letter issued by the Regional Director of the Central Government, Ministry of Company Affairs dated 26.8.2005. The perusal of the said communication shows that so far as the item referred to Clauses No. 3 and 4 in the notices to the lenders and for representing the participants at the meeting of the lenders are concerned, the same is not of much consequence in view of the fact that the scheme is approved and by the requisite statutory majority of the lenders in number and also in comparison to the amount of debt. However, the other two additional aspects which were brought to the notice of this Court, were the pendency of the matter for registration and payment of necessary stamp duties in view of the earlier order passed by this Court sanctioning the scheme of amalgamation as per order dated 11.5.2005 and another is for the payment of the duty on account of increase in the authorised share capital in the form of equity shares which is also a consequence of the order dated 11.5.2005 passed by this Court sanctioning the scheme of amalgamation under Section 391-394 of the Companies Act. When the aforesaid communication was brought to the notice of this Court, Mr. Soparkar, learned Counsel appearing with Mr. Singhi for the petitioner on 7.9.2005 shown the inclination on behalf of the petitioner to deposit the amount and, therefore, accordingly on 7.9.2005 this Court had passed the following order:
1. Mr. Malkan, Ld. Counsel for the Central Govt has placed on record the communication received by him from the Registrar of Companies together with the annexure of the letter dated 26.8.05 issued by the Regional Director intimating the Registrar of Companies the views of the Central Govt in connection with the present petition.
2. The perusal of the said letter, inter alia, shows that the matter is pending for payment of stamp duty under the Bombay Stamp Act as well as the company has to increase the authorised share capital in the form of equity shares, both in pursuance of the earlier order passed by this court for sanctioning the scheme of amalgamation. Mr. Soparkar, Ld. counsel for the petitioner submits that in his submission the objections raised on behalf of the Central Govt are not genuine. However, without making any issue on the said points, he states that the application is made to the Collector and Supdt. of Stamps, Gandhinagar dated 16.6.05 for adjudication of the exact stamp duty which the company would be required to pay. He placed on record the copy of the letter submitted before the Collector and Supdt. of Stamps, Gandhinagar. As mentioned in the said letter, as per the applicant, the stamp duty payable would be of Rs. 23,65,669/- subject to final adjudication by the competent authority. Therefore, Mr. Soparkar submitted that without prejudice to the contentions raised in this petition, to show the bonafides on the part of the petitioner, the petitioner shall deposit the amount of Rs. Rs. 23,65,669/- with the Collector and Supdt. of Stamps, Gandhinagar. As earlier, no notice was issued by this court in the present proceedings to the State Govt, copy of the letter was served to Mr. Bhatt, Ld. AGP on behalf of the State Govt with a formal notice on that point and therefore Mr. Bhatt has stated that the order will be passed by the State Govt. However, he has no objection if the amount is deposited by the petitioner of Rs. 23,65,669/- with the Collector and Supdt. of Stamps, Gandhinagar subject to final outcome of the proceedings of adjudication as per letter dated 16.6.05.
3. In the above circumstances, Mr. Soparkar stated that the petitioner shall deposit the amounts as per the declaration made with the Collector and Supdt. of Stamps, Gandhinagar by way of Demand Draft by 9.9.2005 and shall produce the proof of the same before this court.
4. Mr. Soparkar in response to the second objection raised by the Regional Director on behalf of the Central Govt. about the increase of authorised share capital, submitted that the said objection is not maintainable. However, without making any issue on the said aspect the petitioner shall file appropriate declaration that necessary stamp duty with the Registrar of Companies by 9.9.2005 and shall produce the proof of the payment of stamp duty and necessary fee by way of Demand Draft by 9.9.05.
5. SO to 12.9.05 for further orders.
7. Thereafter, an affidavit dated 12th September, 2005 is filed by Shri Mukund Sapre, authorised Signatory of the petitioner Company for compliance to the order dated 7.9.2005 passed by this Court, which shows that that the amount of stamp duty of Rs. 23,65,669/-, subject to the further adjudication is deposited with the Collector and Additional Superintendent of Stamps, Gandhinagar by demand draft and together with Form No. 5 for increase of the authorised share capital, the demand draft of Rs. 25 lacs is also submitted as payment of the fees with the Registrar of Companies, Gujarat State. Therefore, it appears that the aspects which were brought to the notice of this Court by the Regional Director are taken care of. Mr. Soparkar, learned Counsel appearing for the petitioner did submit that the Central Government is not justified in raising the said objection and as such these objections by the Central Government are not to operate as a bar to the petitioner in pursuing the scheme, nor this Court should consider the same while sanctioning the arrangement proposed in the present petition. I find that when the objections raised on behalf of the Central Government are sufficiently taken care of, no useful purpose would be served in deciding such aspects and, therefore, the said contention is kept open.
8. No other circumstances are brought to the notice of this Court by either party including the Central Government, nor is there any material before this Court that any person is aggrieved or has objected to such scheme or arrangement, which may warrant declining the sanction.
9. As such, in view of the present facts and circumstances, the compromise and/or arrangement as proposed, when is duly approved by the requisite statutory majority of the persons representing the concerned interest, it cannot be said that sanctioning of the scheme as proposed at Annexure SE would be, in any manner, prejudicial to the interest to the share holders of the Company concerned and as the statutory requirements are even otherwise complied with, I find it proper to sanction the scheme as prayed for in the petition. Accordingly, the relief to that extent as prayed in para 16(A) is granted.
10. The petition is allowed to the aforesaid extent. The fees of the Central Government Standing Counsel is quantified at Rs. 3,500/-, which shall be paid by the petitioner Company to the learned Counsel directly by cheque.