2007 (7) TMI 398 - HC - Companies Law

Summary

Issues Involved:
1. Whether the authorized capital of a transferor company merges into the authorized capital of the transferee company upon the scheme being sanctioned and implemented, along with the rights relating thereto.
2. Whether the transferee company is obliged to pay the additional fee for the increase in its authorized capital in terms of Schedule X to the Companies Act, 1956.
3. Treatment of the difference between the amount recorded as the additional share capital issued by the transferee company to the shareholders of the transferor companies and the amount of share capital of the transferor companies received by the transferee company.

Issue-Wise Detailed Analysis:

1. Merger of Authorized Capital:
The court examined whether the authorized capital of a transferor company merges into the authorized capital of the transferee company upon the sanction and implementation of an amalgamation scheme. The petitioner argued that authorized capital, being a property, should vest in the transferee company without additional fees. The court referred to various definitions and precedents, emphasizing that authorized capital is notional and does not represent actual capital or assets. It concluded that authorized capital is a notional right incapable of being transferred and that there is no automatic merger of authorized capitals. The authorized capital of the transferee company does not automatically include the authorized capital of the transferor company unless explicitly approved by the shareholders of the transferee company.

2. Obligation to Pay Additional Fee:
The court addressed whether the transferee company must pay additional fees for the increase in its authorized capital as per Schedule X to the Companies Act, 1956. The petitioner contended that no additional fee should be payable as the authorized capital of the transferor companies merges into that of the transferee company. The court rejected this argument, stating that the increase in authorized capital consequent to a scheme of amalgamation requires payment of the requisite fees. The court emphasized that the single-window clearance provided by the sanctioning of a scheme does not exempt the transferee company from the obligation to pay fees for the increased authorized capital.

3. Treatment of Difference in Share Capital:
The court examined the treatment of the difference between the additional share capital issued by the transferee company and the share capital of the transferor companies. The Central Government argued that such surplus should be treated as amalgamation reserves, which are of a capital nature and not available for distribution as dividends or bonus shares. The petitioner referred to Accounting Standards 14 (AS-14) issued by the Institute of Chartered Accountants of India, which does not mandate such treatment. The court noted that AS-14 allows for the difference to be adjusted in reserves and does not specifically require it to be treated as part of the transferee company's share capital. The court found no reason to impose the condition suggested by the Central Government and allowed the petitioner to retain the original treatment of the difference in reserves as per the scheme.

Conclusion:
The court approved the scheme of amalgamation subject to the modification of clause 11.7 of Part II, which should be replaced to reflect that the authorized capital of the transferee company shall stand increased by the sum of the authorized capitals of the transferor companies upon payment of requisite fees. The petitioner was directed to pay costs to the Regional Director.