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TMI Blog2012 (8) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... d. (transferor company No. 1), M/s. Solidcore Techsoft System India P. Ltd. (transferor company No. 2) and McAfee Software (India) P. Ltd. (transferee company). The transferor companies and transferee company are engaged in the similar business as enumerated in the memorandum and articles of association appended to the petitions. Registered office of the said companies are located at the address mentioned in the cause title of these petitions within the jurisdiction of the Registrar of Companies, Karnataka. A perusal of the petition discloses that the authorised share capital and paid-up capital of the respective companies is as reflected therein. The board of directors of the transferor and transferee companies have approved the scheme of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... randum of association of the transferor companies have the enabling provision for amalgamation. However, the memorandum of association of the transferee company does not have a specific object providing for amalgamation. The transferee company has to amend the objects suitably. (iii) Since the paid-up capital of both the transferor companies are held by their respective foreign holding companies, viz., Reconnex Corporation, USA and Solidcore Systems Inc., USA, the transferee company is required to comply with applicable provisions of the Foreign Exchange Management Act, 1999 and the Foreign Exchange Management Regulations while issuing shares to the shareholders of the transferor company as per scheme. The transferee company has to file ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for not sanctioning the scheme. Even otherwise the power of this court under sections 391 to 394 is not circumscribed by a clause in the articles of association and this court has got inherent powers to sanction the scheme of amalgamation with the transferor companies if it is in consonance with the statutory provisions of the Companies Act. This court while considering similar contentions in C. P. Nos. 27 and 28 of 2008 has relied upon the judgment of the hon'ble apex court in the case of Saraswati Industrial Syndicate Ltd. v. Commissioner of Income-tax [1990] 186 ITR 278; [1990] Suppl. SCC 675; [1991] 70 Comp Cas 184 wherein it is held that section 17 of the Companies Act is an aid to companies which seek amalgamation and has further held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the Registrar of Companies stands complied with. The Registrar of Companies has observed as No. 4 that the authorised capital of the transferee company is already issued, subscribed and paid-up capital and increasing its authorised capital to the extent required to meet the requirements of issue of shares to the shareholders of the transferor companies in terms of the scheme as per provision of sections 94 and 97 of the Companies Act, has to be invariably done. On perusal of the scheme, it would reflect at that clause 10 would provide for consolidation of authorised capital of the transferor companies with the authorised capital of the transferee company. Thus, the authorised capital post consolidation would be sufficient to issue sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approved. The official liquidator has also filed a report stating that the transferor companies have not conducted their business prejudicial to the interest of its shareholders or public at large. Since, all the statutory requirements and compliance have been fulfilled and affidavit of undertaking has been filed by the authorised signatories of the transferor companies and managing director of the transferee company. I am of the considered view that the scheme of amalgamation as proposed requires to be sanctioned/approved since commercial wisdom exercise by the board of directors of the transferor arid transferee companies being in the post interest of its shareholders, this court would not be in a position to sit in appeal over the comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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