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TMI Blog2010 (8) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... dissolved without winding up. - C. P. NOS. 85 AND 86 OF 2010 - - - Dated:- 5-8-2010 - P. JYOTHIMANI, J. R. Rajesh for the Petitioner. R. Vidya and M. Jayakumar for the Official Liquidator. JUDGMENT P. Jyothimani, J . These company petitions are preferred under sections 391 to 394 of the Companies Act, 1956, for sanctioning the scheme of amalgamation of the transferor company with the transferee company with effect from April 1, 2009. 2. M/s. Laurel Aromatics P. Ltd., the petitioner in C. P. No. 85 of 2010 is the transferor company. The main objects of the transferor company, as stated in the memorandum of association, are narrated in paragraph (5) of the said petition and the memorandum of association is enclosed as annexure 1 to the said petition. 3. M/s. Contract Point Impex (India) P. Ltd., the petitioner in C. P. No. 86 of 2010 is the transferee company. The main objects of the transferee company, as stated in the memorandum of association, are narrated in paragraph (5) of the said petition and the memorandum of association is enclosed as annexure 1 to the said petition. 4. In the meeting held on February 12, 2010, the board of direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the official liquidator in the report has raised a pertinent objection which is to the effect that the memorandum of association of the transferee company does not have a specific clause on amalgamation. 10. On a reference to the memorandum of association of the transferor company, it is clear that as per clause 30, the transferor company is enabled to amalgamate with any company or companies having objects altogether or in part similar to those of the transferor company. However, it is true that in the memorandum of association of the transferee company, there is no corresponding clause enabling it to enter into amalgamation. 11. The issue as to whether the absence of such enabling clause to amalgamate in the memorandum of association either of the transferor company or the transferee company is an impediment for this court to approve the scheme of amalgamation came up for consideration in various courts and the courts have consistently taken the stand that inasmuch as the power of amalgamation or arrangement by way of scheme is statutorily available under the Companies Act, 1956, as provided under sections 391 and 394, even in the absence of any enabling provision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a court for alteration of its memorandum in aid of such amalgamation. The statute confers a right on a company to alter its memorandum in aid of amalgamation with another company. The provisions contained in sections 391 to 396 and 494 illustrate some instances of statutory power of amalgamating a company with another company without any specific power in the memorandum." 14. Subsequently, a single judge of the Calcutta High Court in Marybong and Kyel Tea Estate Ltd., In re [1977] 47 Comp. Cas. 802 , while referring to the above said Division Bench judgment, has held that the absence of such clause in the memorandum is not an impediment for sanctioning a scheme. 15. Subsequently, another learned single judge of the Calcutta High Court E. I. T. A. India Ltd. v. Narayan Prasad Lohia AIR 1997 Cal 208; [2000] 99 Comp. Cas. 276, by following the Division Bench judgment, supra, has held as under (page 283) : "The fact that the transferor and the transferee-companies carry on dissimilar business is no ground why the court should not sanction a scheme of amalgamation. In this connection reference may be made to the judgment and decision in PMP Auto Industries Ltd., In re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that case the court was considering not a scheme of amalgamation or arrangement, but the company was amalgamating its business as a going concern on its own undertaking and according to the court, if such a power is not in the memorandum of association of the company, it cannot enter into such an agreement. In my opinion, the law laid down by the Chancery Division in the above referred case is not applicable to the present case. It is further to be seen that this question has not been at all raised by the objector in the various affidavits that have been filed in this court. Thus, I find no force in the objections raised on behalf of the objector. Therefore, the objection is rejected." 17. That was also the view of the Delhi High Court in Highland Electro Appliances (P.) Ltd., In re [2003] 42 SCL 516 , wherein by referring to the above said judgments, it was held as follows (page 519) : "7. In Hari Krishna Lohia v. Hoolungooree Tea Co. Ltd. [1970] 40 Comp. Cas. 458, a Division Bench of the High Court of Calcutta held that 'the power to amalgamate one company with another may flow from the memorandum or it may be acquired by resorting to the statute which confers a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the transferee company is not having power to amalgamate with other companies. The said objection has been answered above in the negative. The second objection which has been raised is that the transferee company is required to file Form No. V along with the registration fees for the increase of its share capital on its amalgamation. 20. As regards the second objection raised by the Regional Director, as rightly submitted by learned counsel for the petitioners, in the light of the decision of this court in Cavin Plastics and Chemicals (P.) Ltd., In re [2006] 129 Comp. Cas. 915, the objection is no longer res integra and hence, the objection of the Regional Director does not survive for consideration. 21. In fact, a Division Bench of this court in Regional Director v. Cavin Plastics and Chemicals (P.) Ltd. [2008] 141 Comp. Cas. 475 , while affirming the view of the single judge in Cavin Plastics and Chemicals (P.) Ltd., In re [2006] 129 Comp. Cas. 915 (Mad), has held as follows (page 480) : "In the case of Hotline Hol Celdings (P.) Ltd., In re [2005] 127 Comp. Cas. 165, the Delhi High Court followed the decision of the Andhra Pradesh High Court in Saboo L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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