In Re: Incy Cybertech (P.) Ltd. Vs.

Disposition Petition allowed Court Gujarat Decided Sep 02, 2009

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Citation: sooperkanoon.com/747970
Court: Gujarat High Court
Judge: Jayant Patel, J.
Decided On: Sep 02, 2009
Case Number: Company Petition Nos. 69, 70 and 74 of 2009 in Company Application Nos. 93, 94 and 98 of 2009
Subject: Company
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

- Sections 4(3), Proviso, 5 & 6: [M.S. Shah, D.H. Waghela & Akil Kureshi, JJ] Complaint alleging inaccuracy or deficiency in maintaining record in prescribed manner as required under Section 4(3) - Held, It need not contain allegation of contravention of provisions of Section 5 or Section 6. Burden to prove that th...

Key legal issue: Company
Outcome / disposition: Petition allowed
Acts & sections: Companies Act, 1956 - Sections 101(2); Companies (Court) Rules, 1959 - Rules 48 to 65

Parties & Advocates

Appellant / Petitioner

In Re: Incy Cybertech (P.) Ltd.

Advocate Swati Soparkar, Adv.

Respondent

Advocate P.S. Champaneri, Adv.

Legal References

Acts: Companies Act, 1956 - Sections 101(2); Companies (Court) Rules, 1959 - Rules 48 to 65
Reported In: [2010]97SCL165(Guj)

Excerpt

.....5 & 6: [m.s. shah, d.h. waghela & akil kureshi, jj] complaint alleging inaccuracy or deficiency in maintaining record in prescribed manner as required under section 4(3) - held, it need not contain allegation of contravention of provisions of section 5 or section 6. burden to prove that there was contravention of provisions of section 5 or 6 does not lie upon prosecution. sections 5 & 6 & pre-conception & pre-natal diagnostic techniques (prohibition of sex selection) rules, 1996, rule 9: [m.s. shah, d.h. waghela & akil kureshi, jj] deficiency or inaccuracy in filling form f - held, deficiency or inaccuracy in filling form f prescribed under rule 9 of the rules made under pndt act, being a deficiency or inaccuracy in keeping record in the prescribed manner, it is not a procedural lapse but an independent offence amounting to contravention of the provisions of section 5 or 6 of the pndt act and has to be treated and tried accordingly. it does not, however, mean that each inaccuracy or deficiency in maintaining the requisite record may be as serious as violation of the provisions of section 5 or 6 of the act and the court would be justified, while imposing punishment upon conviction, in taking a lenient view in cases of only technical, formal or insignificant lapses in filing up the forms. for example, not maintaining the record of conducting ultrasonography on a pregnant woman at all or filling up incorrect particulars may be taken in all seriousness as if the provisions of section 5 or 6 were violated, but incomplete details of the full name and address of the pregnant woman may be treated leniently if her identity and address were otherwise mentioned in a manner sufficient to identify and trace her. section 28: [m.s. shah, d.h. waghela & akil kureshi, jj] cognizance of offence held, use of the words appropriate authority twice, at the beginning and end of clause (a) of sub-section (1) of section 28, clearly conveys that complaint could be made by..........with, since the consent letters of all the equity-shareholders were produced for approval of the scheme. further, as the scheme was to result into restructuring of the share capital in the form of reduction of share capital, this court in the very order had observed that the procedure prescribed under section 101(2) shall not be necessary and, hence, the procedure prescribed under rules 48 to 65 of the companies (court) rules, 1959 was ordered to be dispensed with.5. all the petitions came to be admitted on 6-4-2009 and the publications were ordered in english daily, indian express (ahmedabad edition) and sandesh, gujarati daily (ahmedabad edition). common publication was permitted in respect of all the transferor-companies, whereas for transferee-company, separate publication was ordered. publication in the government gazette was dispensed with.6. notice was also issued to the central government through regional director, department of company affairs, mumbai, in all the petitions. further, so far as the transferor-companies are concerned, additional notices were issued to the official liquidator for examination into the affairs of the company and the official liquidator was permitted to appoint chartered accountant for such purpose.7. the affidavit has been filed by mr. dharmendra mavjibhai rathod, clerk of the learned counsel dated 14-5-2009, stating that the order for publication has been complied with and the relevant extracts of the paper publications are also produced with the said affidavit. further, in the additional affidavit filed on behalf of the petitioner-company dated 21-8-2009, it has been stated that the petitioner or its advocate has not received any objection from any person in response to the publication.8. the official liquidator has filed reports in the petitions of all the transferor-companies together with the report of chartered accountant, dharmendra shah & company. as stated by the official liquidator in the reports, on the basis of the.....

Full Judgment

Jayant Patel, J.

1. The present petitions are for seeking sanction to the Scheme of Amalgamation of M/s. INCY Cybertech Pvt. Ltd. (petitioner of Company Petition No. 69 of 2009), M/s. XMO Technologies Pvt. Ltd. (petitioner of Company Petition No. 70 of 2009), M/s. PBP Technologies Pvt. Ltd. (petitioner of Company Petition No. 71 of 2009), M/s. Ageek Stamp Pvt. Ltd. (petitioner of Company Petition No. 72 of 2009) and M/s. Umiya Financial Consultancy Pvt. Ltd. (petitioner of Company Petition No. 73 of 2009) (hereinafter referred to as 'Transferor-Company/ies') with M/s. Khurana Builders Pvt. Ltd. (petitioner of Company Petition No. 74 of 2009) (hereinafter referred to as 'Transferee-Company').

2. The Scheme of Amalgamation is produced at Annexure 'C' of the petition.

3. In case of all the transferor-companies, vide order dated 23-3-2009 passed by this Court in Company Application No. 93 of 2009 to Company Application No. 97 of 2009, as the consent letters were produced, the meetings of equity shareholders and all unsecured creditors were dispensed with by recording the statements that there is no secured creditors of the concerned petitioner-companies.

4. In case of transferee-company, vide order dated 23-3-2009 passed by this Court in Company Application No. 98 of 2009, the meeting of the equity shareholders was also dispensed with, since the consent letters of all the equity-shareholders were produced for approval of the Scheme. Further, as the Scheme was to result into restructuring of the share capital in the form of reduction of share capital, this Court in the very order had observed that the procedure prescribed under Section 101(2) shall not be necessary and, hence, the procedure prescribed under Rules 48 to 65 of the Companies (Court) Rules, 1959 was ordered to be dispensed with.

5. All the petitions came to be admitted on 6-4-2009 and the publications were ordered in English daily, Indian Express (Ahmedabad Edition) and Sandesh, Gujarati daily (Ahmedabad Edition). Common publication was permitted in respect of all the transferor-companies, whereas for transferee-company, separate publication was ordered. Publication in the Government Gazette was dispensed with.

6. Notice was also issued to the Central Government through Regional Director, Department of Company Affairs, Mumbai, in all the petitions. Further, so far as the transferor-companies are concerned, additional notices were issued to the Official Liquidator for examination into the affairs of the company and the Official Liquidator was permitted to appoint Chartered Accountant for such purpose.

7. The affidavit has been filed by Mr. Dharmendra Mavjibhai Rathod, clerk of the learned Counsel dated 14-5-2009, stating that the order for publication has been complied with and the relevant extracts of the paper publications are also produced with the said affidavit. Further, in the additional affidavit filed on behalf of the petitioner-company dated 21-8-2009, it has been stated that the petitioner or its advocate has not received any objection from any person in response to the publication.

8. The Official Liquidator has filed reports in the petitions of all the transferor-companies together with the report of Chartered Accountant, Dharmendra Shah & Company. As stated by the Official Liquidator in the reports, on the basis of the information and according to the explanations given, the affairs of the transferor-companies have not been conducted in the manner prejudicial to the interest of its members or the public interest.

9. In response to the notice issued to the Central Government, affidavit dated 11-8-2009 has been filed by Mr. R.K. Dalmia, Dy. Registrar of Companies, based on the correspondence dated 6-8-2009 received by the Office of the Registrar of Companies, Gujarat from the Regional Director and as per the said affidavit, the Central Government has no opposition to the present petitions.

10. No other adverse circumstances are brought to the notice of this Court.

11. In view of the above, the present Scheme of Amalgamation at Annexure-C is sanctioned in accordance with the provisions of the Companies Act and the minutes of the meetings as mentioned in para 15 of Company Petition No. 74 of 2009 are approved, by granting permission to put today's date.

12. The petitions are allowed accordingly.

13. The cost of the Central Government is quantified at Rs. 2,500 in each petition and the cost of the Official Liquidator is quantified at Rs. 1,500 in each petition of the transferor-companies.

14. It will be open to the concerned petitioner-company to pay the cost to the learned standing counsel, Mr. M. Iqbal Sheikh, by 'Account Payee' cheque directly and it will also be open to the concerned petitioning company to pay the cost directly to the Official Liquidator by 'Account Payee' cheque.

Same Court & Year Gujarat · 2009 Same Parties In Re: Incy Cybertech (P.) Ltd. vs Same Subject Company Same Judge Jayant Patel, J. Acts & Sections Companies Act, 1956 - Sections 101(2); Companies (Court) Rule...

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