9911796707
TMI Blog2006 (12) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... RBR Garments P. Ltd., the petitioner in C.P. No. 173 of 2006, is the transferee company. The main objects of the transferee company as stated in the memorandum of association, is narrated in paragraph 3 of the petition and the memorandum of association is marked as Annexure A. 5. In the meeting held on 23-8-2006, the board of directors of the transferor company 1, the petitioner in C.P. No. 171 of 2006, considered and approved the scheme of amalgamation of the transferor companies, the petitioners in C.P. Nos. 171 and 172 of 2006, with the transferee company, the petitioner in C.P. No. 173 of 2006. Copy of the board resolution is marked at Serial No. 7. The scheme of amalgamation is marked as Annexure C. 6. In the meeting held on 18-5-2006, the board of directors of the transferor company 2, the petitioner in C.P. No. 172 of 2006, considered and approved the scheme of amalgamation of the transferor companies 1 and 2, the petitioners in C.P. Nos. 171 and 172 of 2006, with the transferee company, the petitioner in C.P. No. 173 of 2006. Copy of the board resolution is marked at Serial No. 7. The scheme of amalgamation is marked as Annexure C. 7. In the meeting held on 18- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of nature to which the transferor companies are parties to the benefit of the transferee company. It is also felt that the transferee company shall enter into and execute deeds or writings or enter into tripartite arrangements, confirmations or novations to which the respective transferor companies will, if necessary be also added as a party to give formal effect to the clause, if so required or becomes necessary. 10. It is stated that upon the scheme coming into effect, the authorised share capital of the transferor companies shall stand combined with the authorised share capital of the transferee company. It is also stated that clause V of the memorandum of association of the transferee company shall, without any further act, instrument or deed, be and stand altered, modified and amended pursuant to sections 94 and 394 and other applicable provisions of the Act by deleting the existing clause and replacing it by the following clause : "The authorised share capital of the company is Rs. 5,50,00,000 divided into 55,00,000 equity shares of Rs. 10 each with power to increase and reduce the capital of the company or to divide the shares in the capital for the time being into se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is stated that the transferor company 1 is in sound financial position. The scheme does not affect the interest of the creditors of the company involved. It is further stated that none of the directors of the transferor companies or the transferee company have any material interest in the proposed scheme of amalgamation. No investigation are pending against any of these petitioner-companies. 15. The transferor company 1, the petitioner in C.P. No. 171 of 2006, has only one secured creditor, viz., State Bank of Travancore. The said bank by its letter dated 21-7-2006, stated no objection to the scheme being sanctioned. The copy of which is marked as Annexure D. 16. The transferor company 2, the petitioner in C.P. No. 172 of 2006, has also only one secured creditor, viz., Canara Bank. The said bank by its letter dated 24-8-2006, stated no objection to the scheme being sanctioned. The copy of which is marked as Annexure D. 17. As far as the transferee company is concerned, the petitioner in C.P. No. 173 of 2006, it has only one secured creditor, viz., State Bank of Travancore. The said bank by its letter dated 28-6-2006, indicated its no objection to the scheme be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering the petition. It is further stated that this court had already allowed the merger of the authorised capital on similar case for amalgamation of M/s. Henkal Spic India Ltd., with M/s. Henkal India Ltd. The Registrar of Companies, Chennai, has filed an appeal against the said order dated 28-7-2005. ( ii )It is further stated that as seen from the balance-sheet of the transferor companies as at 31-3-2006, a sum of Rs. 1,95,00,000 is shown as application money pending allotment in the case of transferor company 1 and, Rs. 1,45,53,000 as application money in the case of transferor company 2. But nothing has been mentioned in the scheme as to how the said application money pending allotment will be treated in the books of the transferee company pursuant to the amalgamation. It is further stated that the said application money cannot be treated as application money in the books of the transferee company and should be shown only as unsecured loan in their books. ( iii )It is stated that there is no enabling provisions for amalgamation in the memorandum of association of the transferor company 2. 23. The Regional Director has stated in paragraph 10 of the report that clause 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted in United Bank of India Ltd. v. United India Credit Development Co. Ltd. [1977] 47 Comp. Cas. 689 (Cal.), by holding that by invoking sections 391 and 393 of the Companies Act, there are no fetters on the exercise of such powers regardless of whether the power to amalgamate with another company is contained in the memorandum of the concerned company, the company can still go for an amalgamation. The Bombay High Court also taken a similar view in a decision reported in Aimco Pesticides Ltd., In re [2001] 103 Comp. Cas. 463 1 . Considering the scope of powers under sections 391 and 394 of the Companies Act, the Delhi High Court held that : "...the powers of the court under sections 391 to 394 are not circumscribed by or predicated on the applicant-company possessing powers under its objects clause to amalgamate with any other company. As has been observed by the Division Bench of the Calcutta High Court, if such a power is in fact contained in the memorandum of the respective companies, those companies need not seek the imprimatur and approval of the company judge and may initiate and effect the amalgamation de hors the company judge. In these circumstances, the obj ..... X X X X Extracts X X X X X X X X Extracts X X X X
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