1974 (5) TMI 34 - HC - Companies Law

Memorandum of association - Special resolution and confirmation by CLB required for alteration of

Summary

Issues: Application under section 17 of the Companies Act, 1956 for sanction of alteration of memorandum of association.

The judgment delivered by Sabyasachi Mukharji, J. pertains to an application under section 17 of the Companies Act, 1956, seeking approval for the alteration of the memorandum of association. The company, previously engaged in colliery business, has now been nationalized, prompting the company to explore new business avenues. The proposed alterations have been approved by the shareholders, and creditors have been duly notified with no objections raised. The financial stability of the company is evidenced by profitable operations over the past two years, with assets exceeding liabilities. The Registrar of Companies is the sole opposing party to the application. The judge refers to precedents from the Orissa High Court and the Punjab and Haryana High Court to support the sanctioning of the alteration, emphasizing the absence of any opposition from creditors and the financial soundness of the company.

In contrast, the counsel for the Registrar of Companies cites a previous decision of the Calcutta High Court in the case of In re Bharat Mining Corporation Ltd., where it was cautioned against allowing alterations that could mislead or diverge significantly from the company's original business activities. However, the judge distinguishes the present case by highlighting that the company's shift in business focus is necessitated by nationalization rather than an inability to continue its previous operations. The judge acknowledges that while companies often have multiple objectives at incorporation, they typically pursue ventures that are profitable or feasible. In this context, the judge finds no legal impediment to the company's diversification given the circumstances, especially since the proposed activities are not illegal, do not contravene public policy, and are not an attempt to defraud creditors.

Consequently, the judge rules in favor of sanctioning the alteration, subject to the company appropriately amending its name to reflect the new ventures. The judge underscores the evolving nature of business practices in contemporary times, where single-purpose entities are giving way to multifaceted institutions and projects. The judgment concludes by ordering the company to bear the costs of the application, emphasizing the need for companies to adapt to changing market dynamics and pursue diverse business opportunities within the framework of the law.