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TMI Blog2017 (10) TMI 1195X X X X Extracts X X X X X X X X Extracts X X X X ..... ny registered as a partnership firm and a transferee company registered under the Companies Act, 1956 but not vice-versa. Applicant, being a registered partnership firm and a body corporate, is not a company within the meaning of the Companies Act, 2013 and, therefore, it cannot participate in the amalgamation proceedings that are initiated under the provisions of sections 230 to 232 of the Companies Act, 2013 - CA(CAA) NO. 95/NCLT/AHM/2017 - - - Dated:- 22-9-2017 - MR. BIKKI RAVEENDRA BABU, J. For The Applicant : Navin Pahwa, Sr. Adv., Ms. Natasha Sutaria, Adv. ORDER 1. Applicant No.2 in CA(CAA) No.95 of 2017 has filed this application inviting a finding from this Tribunal on the aspect whether a partnership firm, being a body corporate, is entitled to maintain the application under Sections 230-232 of the Companies Act, 2013. 2. The facts, in brief, that are germane for the disposal of this application are as follows :- 3. The applicant is Transferor Company No.2 in CA(CAA) No.95 of 2017. The applicant is a partnership firm consisting of eight partners, registered under the Indian Partnership Act, 1932 and is formed on 5.2.2015. 4. The Scheme that has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that from the date of incorporation mentioned in the certificate of incorporation, a company shall be a body corporate by name contained in the memorandum. Section 366 of the Companies Act, 2013 deals with entities authorised to register as a company . It includes any partnership firm, limited liability partnership, co-operative society, society or any other business entity formed under any other law for the time being in force which applies for registration under Part I of Chapter XXI. It is also stated that Explanation (b) of sub-section (4) to Section 375 stipulates that the expression unregistered company shall include any partnership firm consisting of more than seven members. It is also pointed out that section 394(4)(b) of the Companies Act, 1956 stipulated that the transferee company does not include any company other than a company within the meaning of the Act, whereas a transferor company includes any body corporate within the meaning of the said Act or not. It is stated that for the purpose of provisions governing the scheme of arrangement, body corporate shall be treated as company. It is stated further that Section 234(2) of the Companies Act, 2013 stipulates merge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification specify in this behalf. No notification by the Central Government specifying that a registered partnership firm shall not be included in the definition of body corporate has been brought to my notice. Therefore, the applicant being a registered partnership firm, it can be treated as a body corporate . The argument of the learned counsel for the applicant is that in view of Section 2(95) of the Companies Act, the definition of company given in Section 27(2), Explanation- A(a) of SEBI Act, the definition of company given in Section 21, Explanation (a) of the Depositories Act, 1996 and the definition of company given in Section 24(2), Explanation (a) of Securities Contracts (Regulation) Act, 1956 shall be taken into consideration. 12. Section 2(95) of the Companies Act, 2013 applies only for the words and expressions used and not defined in the Act. It is pertinent to mention here that company is defined in the Act in Section 2(20). Therefore, the applicant is not entitled to refer to the definitions of company in the Acts referred to above since there is a definition of company in Section 2(20) of the Companies Act, 2013. There is no dispute about the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2013, there is no similar provision in sections 230 and 232 of the Companies Act, 2013. Therefore, the Legislature in its wisdom thought it fit to make the provisions of Compromises, Arrangements, etc. only available to companies registered under the Companies Act, 2013 or under any previous Company Law, as defined in sub-section (20) of section 2. If really the Parliament intended to apply the provisions of sections 230-232 to body corporates other than companies registered under the Companies Act, there would have been such provision in sections 230-232 of the Companies Act, 2013. In the absence of such provision in the Companies Act, 2013 relating to amalgamation, it cannot be said that even a body corporate can participate in the scheme of amalgamation. Coming to sub-section (2) of Section 234, which exclusively deals only with foreign companies, it says that a foreign company means any company or body corporate incorporated outside India whether having a place of business in India or not. That means in case of foreign companies, even a body corporate incorporated outside India can participate in the scheme of amalgamation. Section 234 deals with merger or amalgamation of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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