9911796707
TMI Blog2007 (4) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... eemable preference shares in the transferor has also granted his consent. In both the Company Petitions, notices were undertaken to be furnished to the secured creditors. The Court has been informed that this was done and an affidavit of service has been filed. Both the transferor and the transferee are in the same line of business. The scheme of amalgamation has been envisaged in the commercial interest of the two companies. 2. Two objections have been preferred on behalf of the Regional Director which are set out in an affidavit dated 29-3-2007. The objections are as follows : "( a )As per clause 6 of the Scheme, the name of the transferee company shall be changed from YOU Broadband Networks India Private Limited to YOU Telecom India Private Limited . Hence the transferee company may be directed to comply with the provisions of section 21 in respect of filing of necessary forms with the Registrar of Companies. ( b )As per clause 8.1 of the Scheme, upon sanction of this Scheme, the authorized share capital of the transferee company shall automatically stand increased without any further act or deed on the part of the transferee company, including payment of stamp duty a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of compromise and arrangement...." (p. 855) A similar view was taken in this Court by Mrs. Justice Sujata Manohar (as the Learned Judge then was) in Vasant Investment Corpn. Ltd. v. Official Liquidator, Colaba Land Mill Co. Ltd. [1981] 51 Comp. Cas. 20 . The Learned Judge held that except for a reduction of share capital which requires a special procedure to be followed under rule 85, the procedure for carrying out alterations in the Memorandum and Articles of Association of a company prescribed by other provisions of the Companies Act, 1956 is not required to be followed before a scheme is sanctioned : "...The whole purpose of section 391 is to reconstitute the company without the company being required to make a number of applications under the Companies Act for various alterations which may be required in its memorandum and articles of association for functioning as a reconstituted company under the scheme...." (p. 35) These judgments were cited with approval in a judgment of Mr. Justice B.N. Srikrishna (as he then was) in the case of PMP Auto Industries Ltd. In re [1994] 80 Comp. Cas. 289 (Bom.). Summarizing the position in law, the Learned Judge held as follows : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the orders passed by this Court. In other words, by operation of law, such changes would come into effect. Therefore, it has statutory genesis and statutory character, but not mere individual acts of the companies. In that view of the matter, no separate notice informing the Registrar under section 95 or 97 of the Companies Act need be given, unlike the other cases which do not require the sanctions of the Court, in my considered view inasmuch as the scheme is required to be sanctioned by this Court and such sanction is required to be registered with the Registrar of Companies by filing the certified copy of the order of this court. . . ." (p. 732) 6. In the case of Hotline Hol Celdings (P.) Ltd. In re [2005] 127 Comp. Cas. 165 2 Mr. Justice A.K. Sikri of the Delhi High Court followed the decision of the Andhra Pradesh High Court while considering an objection of the Regional Director to the effect that the authorized share capital of the merged company was being increased as a result of the scheme of amalgamation and this could only be earned out after following the procedure prescribed by the relevant provisions of the Companies Act and payment of fees to the Registrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowed nor is any further fee liable to be paid. The judgment of the Punjab and Haryana High Court in the case of Motorola India (P.) Ltd. In re [2006] 73 CLA 1 follows the same principle. Insofar as the aspect of stamp duty is concerned, counsel appearing for the petitioners has fairly stated that the stamp duty as required by the provisions of the Bombay Stamp Act will have to be paid. The only judgment in the long line of authorities which seems to take a different position is the judgment of Mr. Justice R.J. Kochar of this Court in Anmol Trading Co. Ltd. v. Shaily Engg. Plastics Ltd. [2003] 113 Comp. Cas. 107 . In that case, the Learned Single Judge held that sections 391 to 394 do not stipulate that where the share capital of the transferee company is to be increased, that it would not be necessary to comply with section 97 of the Act. From the judgment of the Learned Single Judge it is, however, clear that the attention of the Court was not drawn to the consistent position of law laid down in the judgments of Mrs. Justice Sujata Manohar in Vasant Investment Corpn. Ltd. s case ( supra ) and Mr. Justice B.N. Srikrishna in PMP Auto Industries Ltd. s case ( supra ) whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
