9911796707
TMI Blog2007 (11) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... pany Judge sanctioning a Scheme of Amalgamation between the respondent/Transferor Company/Cavin Plastics & Chemi-cals (P.) Ltd. and the Transferee Company namely, Cavinkare Private Limited. 3. Before the learned Company Judge the appellants raised an objection to clause 13.2 of the Scheme, which provides that the filing fee already paid by the Transferor Company on its Authorised Share Capital shall be deemed to have been so paid by the Transferee Company on the combined Authorised Share Capital. The contention of the appellants is that the Authorised Share Capital of the Company could be increased only after following the procedure prescribed under the relevant provisions of the Companies Act, 1956, and on payment of requisite fees to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the decision in Vasant Investment Corpn. Ltd.'s case (supra) has been consistently followed in the judgments of the Andhra Pradesh, Delhi, Allahabad & Punjab Haryana & High Courts. In this connection, he also referred to the decisions of this Court in Cavin Plastics & Chemicals Ltd. v. Cavinkan (P.) Ltd. 2006 (6) CLJ (Mad.) 154, Aswin Poultry Farms (India) Ltd., In re. [2007] 138 Comp. Cas. 505 (Mad.), and Bysani Consumer Electronics Ltd., In re [2006] 134 Comp. Cas. 991 (Mad.). 6. The scope of sections 391 to 394 of the Act was construed in the judgment of the Gujarat High Court in Maneckchowk & Ahmedabad Mfg. Co. Ltd., In re [1970] 40 Comp. Cas. 819 in respect of a proposed scheme for re-organization of the share capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... included in the compromise another procedure is prescribed in the Companies Act and which has not been carried out. It, therefore, appears that section 391 is a complete code which provides for sanctioning of the scheme of compromise and arrangement. . . ." (p. 855) 7. In Vasant Investment Corporation Ltd.'s case (supra ), the Bombay High Court 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 Court, further, held thus: ". . . the whole purpose of secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effectively to implement the sanctioned scheme whose overall fairness and feasibility has been judged by the Court under section 394 of the Act." (p. 299) 9. The same view has been taken by the Allahabad High Court in Jaypee Greens Ltd., In re [2007] 74 SCL 118 holding that where a combined authorized capital of the amalgamated company does not exceed the authorized capital of the transferor and the transferee, no separate procedure for such merger of Authorized Share Capital is required to be followed 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] 71 SCL 444 also takes the same view. In the case of Saboo & Leasing (P.) Ltd., In re [2006] 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Companies Act need be given, ... 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. 556) The above view of the learned Single Judge was confirmed by the Division Bench of the Andhra Pradesh High Court in Kemira Laboratories Ltd., In re [2007] 77 SCL 174 (AP). 10. In the case of Hoteline Hol Celdings (P.) Ltd., In re [2005] 127 Comp. Cas. 1651 (Delhi), the Delhi High Court followed the decision of the Andhra Pradesh High Court in Saboo Leasing (P.) Ltd., In re ( supra) while considering an objection of the Regional Director to the effect that the authorized share capital of the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said judgment, the Calcutta High Court has held that the right to increase its paid up capital to its authorized limit, is a right unique to each Company and incapable of being transferred, just as the fee paid for registration of the Company is also incapable of being transferred and consequently, a separate fee would be payable under section 95 read with section 97 of the Act. We are unable to agree with the reasoning of the learned Single Judge. The issue is not whether the fee, which is already paid by the Transferor Company would automatically be transferred to the Transferee Company. But, what is intended by section 391 of the Act is to reconstitute the Company without the Company being required to make a number of Applications und ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
