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TMI Blog2003 (8) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... y, by a resolution dated 28-4-2003 the authorised capital of the company was increased by Rs. 9 crores thereby raising up the capital to Rs. 35 crores. The company was incorporated with the main objects, to carry on the business in the area of information technology and software and to render consultancy training; to undertake turnkey software projects and operation research; to offer complete hardware and software solutions and technical services; to carry out researches, investigations and experimental work of every description in relation to the electrical, electronic and telecommunication industry; to undertake designing, development and programming of systems and application software either for its own use or for sale in India or abroad; to carry on the business of internet and e-commerce and to offer web based solutions; to set up and run electronic data processing centers and to carry on the business of data processing, word processing, software development, programming consultancy, etc.; and to carry on the business of manufacturers, developers, buyers, sellers, importers, exporters, agents, job workers, assemblers and dealers of Metal Oxide semiconductor chips, chips of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without any interruption and the transferee company shall stand substituted for the transferor company. The scheme is subject to the approval of the appropriate authorities. 6. The transferee company filed C.A. No. 304/2003 on 28-3-2003 under section 391 of the Act. Notices have been directed to be issued to all the shareholders of the company and publication in the newspaper, namely, "Business Line" has been ordered. The meeting of the shareholders was held on 28-4-2003. Out of total 93 shareholders that attended both in person and through proxies, 91 voted unanimously in favour of the scheme and two votes became invalid. The shareholders of the transferor company have given a written consent. 7. The transferee company has only trade creditors. The transferor company has no creditors at all. The scheme does not involve any compromise or composition with the creditors of the petitioner-transferee company or transferor company. The assets of the transferee company are sufficient enough to meet all the liabilities present and future. 8. After the admission of the petition, publication was ordered besides notices to the Central Government. Publication was duly effected in the newsp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the fact there have been no objections whatsoever from any corner including the Central Government, it becomes necessary to accord the necessary sanction. But, then one glaring aspect need be noticed. The transferee company has been incorporated within the territorial limits of this Court. However, the transferor company is situate in a foreign country. The transferor company has not joined the transferee company in this petition seeking the necessary sanction from this Court. It is appropriate, therefore, here to consider section 394 of the Act, the provision germane in the context. The said section provides for sanctioning of the scheme when such a scheme has been proposed for the reconstruction of the company or companies or amalgamation of any two or more companies. The Company Court while sanctioning the scheme may make necessary provisions as enjoined under clauses (i) to (vi) of sub-section (1) thereof. Sub-section (4) thereof is the important provision. It reads as under: "(4) In this section-- (a )'property' includes property, rights and powers of every description; and 'liabilities' includes duties of every description; and (b)'transferee company' does not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith any number of foreign corporations may be effected if the foreign corporations are authorised by the laws under which they are formed to effect the merger. The surviving corporation may be any one of the constituent corporations and shall continue to exist under the laws of the State or place of its incorporation. (b) If the surviving corporation is a domestic corporation, the merger proceedings with respect to that corporation and any domestic disappearing corporation shall conform to the provisions of this chapter governing the merger of domestic corporations, but if the surviving corporation is a foreign corporation, then, subject to the requirements of sub-division (d) and of section 407 and Chapters 12 (commencing with section 1200) and 13 (commencing with section 1300) (with respect to any domestic constituent corporations), the merger proceedings may be in accordance with the laws of the State or place of incorporation of the surviving corporation. (c) ****** (d) If the surviving corporation is a foreign corporation, the merger shall become effective in accordance with the law of the jurisdiction in which it is organized, but, except as provided in sub-division (e), t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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