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TMI Blog2011 (7) TMI 1304X X X X Extracts X X X X X X X X Extracts X X X X ..... reditors and unsecured creditors of the petitioner company. 3. The petitioner company thereafter filed company petition No.79 of 2011 seeking sanction of the scheme. This Court (coram: Hon'ble Mr. Justice K.S. Jhaveri) by order dated 13.5.2011 admitted the aforesaid company petition and directed issuance of notice to the Regional Director. This Court also directed publication of notice of petition in Indian Express , Ahmedabad Edition and in Sandesh , Ahmedabad Edition. 4. The petitioner company has submitted that pursuant to the order dated 13.5.2011, it has published the notice of hearing of the petition in English daily newspaper Indian Express Ahmedabad Edition and in Gujarati daily newspaper Sandesh , Ahmedabad Edition on 25.5.2011. The affidavit dated 10.6.2011 about publication of advertisement has been filed on behalf of the petitioner company confirming the publication of the notice in the newspapers as directed and also the notice of hearing of petition served upon the Regional Director. 5. Pursuant to the notice to the Regional Director, affidavit dated 15.6.2011 raising in all 5 objections (a to e) is filed by the Regional Director. In response, the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notified by the Central Government under Section 211 (3A) of the Companies Act, 1956. The Hon'ble Court may therefore, be pleased to direct the petitioner transferee company to make adjustments in their Books of accounts as per the Accounting Standard-14 notified by the Central Government under Section 211(3A) of the Companies Act, 1956. (d) In his fourth observation the Regional Director has raised objection with regard to Clause No.3.3 of part III of the scheme, which refers to the provisions relating to the amalgamating companies under the Law of Mauritius. In this context the Regional Director has stated in para 2(d) that:- ... the Hon'ble Court may be pleased to direct the petitioner transferee company to ensure that all the provisions relating to the amalgamation under the laws of Mauritius are complied with by the transferee companies. Thus, the Regional Director has submitted that the petitioner transferee company must ensure that all the provisions relating to the amalgamation under the laws of Mauritius are complied with by the transferor companies and directions for the said purpose need to be issued. (e) Then the Regional Director has made observa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed and their compliance be made condition precedent for approving the scheme. It is also submitted that the transferor company is registered in another Country (in Mauritius) and it is claimed that the transfer or company has filed a petition in the competent Court of the said Country, hence the order that may be passed in such petition may be awaited or in alternative present order may be made subject to the order that may be passed in such petition filed by the transferee company. 7. Mr. Singhi, learned advocate for the applicant has, in response to the observations and directions made by the Regional Director, submitted, inter alia, that the petitioner company has undertaken to comply with all requirements prescribed under the Acts and the Rules framed there under and / or as suggested by the Regional Director and the petitioner company has not requested for any exemption in respect of any of the requirements prescribed by the Act or Rules or as suggested by the Regional Director. Having said thus, learned Counsel submitted that in such circumstances, the application may be accepted and may be granted subject to such compliance. 7.1 As regards the submission on behalf o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he scheme i.e. Scheme of Amalgamation of the transfer or company with transferee company may be sanctioned. 8.3 By virtue of Section 390 of the Act, which is contained under Chapter-IV of the Act, it is provided that in sections 391 and 393 the expression Company would mean any company liable to be wound-up under the Act. Thus, for the purpose of said sections i.e. Sections 391 393, the expression Company is required to be construed accordingly. 8.4 Furthermore, the provision under Section 2(10) defines terms Company thus:- company means a company defined under Section 3 8.5 At this stage it would be appropriate to also take into account the provisions contained under Section 394 of the Act, particularly the provision contained under sub-clause (b) of sub-section (4) of section 394. Section 394 of the Act inter alia, makes provision for facilitating, reconstruction and amalgamation of the company and sub-section (4) (b) thereof provides that though the term transferee company does not include any company other than a company within the meaning of the Act but the expression transferor company includes any body corporate , whether a company within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be amalgamated with the transferee company so long as the transferee company is incorporated and registered in India. However, it would be subject to the condition that such amalgamation must not be in violation of the provision contained under Reserve Bank of India Act, 1934 and / or Foreign Exchange Management Act, 1999 and also the provision of the Act. Such amalgamation also should not be in violation of any provision applicable to the transferor company i.e. should not be in violation of the laws applicable to the companies in the Country where the transferor company is formed and registered. 9. So far as present case is concerned, while it is true that the two transferor companies are not formed and registered in India and are not company within the meaning of the term defined and contemplated under Section 2(10) of the Act, however from the declaration made by the transferee company and from the constitution of Well worth Investment Limited and Eternity Investment Limited i.e. the transferor companies (which are to be found at pages 38 to 67 and 68 to 96) and also from the order of the Supreme Court of Mauritius passed in the petition preferred by the transferor com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 391 to 394 and other applicable provisions of the India Act and Part XVIII and Part II of the Fourteen Schedule of the Mauritius Act, as going concerns, without any further deed or act, together with all the properties, assets, rights, liabilities, benefits and interest therein, subject to any existing charges, lien or lis pendes, which shall be deemed to be modified in accordance with the provisions of the scheme. c. ORDERS the dissolution of the Amalgamating Companies without winding up upon the scheme becoming effective. d. ORDERS that liberty be reserved to the applicants and to all other persons interested in this application to apply to this Honourable Court as and when occasion may arise for any direction that may be necessary. e. ORDERS that in respect of such incidental, consequential and supplemental matters as are necessary to ensure that the said scheme shall be fully and effectually carried out. f. ORDERS the Amalgamating Companies to surrender to the Financial Services Commission their Category 2 Global Business Licence. 12. In respect of the observations made by the Regional Director in para 2(d) and (e), Mr. Sandeep Singhi, learned advocate for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree company shall take necessary steps for striking off the names of both the transferor companies in accordance with the provisions of the Companies Act, Mauritius, 2001 12.2 Accordingly the petitioner company has stipulated, undertaken and declared that while increasing its authorized share capital and issuing equity shares to the transferor companies it shall comply with the provision contained under Sections 16, 17, 94, 97 and 102 of the Act and that before issuing equity shares to the transferor company in terms of clause 4.2.1 of part IV of the proposed scheme, it shall increase its authorized share capital and only thereafter allotment of shares to the members of the transferor company as per the provision under the Scheme, shall be effected. The petitioner company has also stipulated, undertaken and declared that it shall diligently follow and comply with the Accounting Standard 14 as notified by the Central Government and shall make adjustment in their Books of Account as per the Accounting Standard 14 notified by the Central Government under Section 211 (3A) of the Act and that the transferee company shall, in all respect and in all manner, diligently and strictly com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suing equity shares to the transferor company in terms of clause 4.2.1 of part IV of the proposed scheme it shall comply with the provisions contained under Sections 16, 17, 94, 97 and 102 of the Act. (b) it shall allot the shares to the members of the transferor company, as per the provision under the Scheme, only after increasing its authorized share capital in accordance with the the provisions under Sections 16, 17, 94, 97 and 102 of the Act. (c) it shall diligently follow and comply the Accounting Standard 14 as notified by the Central Government and shall make adjustment in their Books of Account as per the Accounting Standard 14 notified by the Central Government under Section 211 (3A) of the Act. (d) it shall, so far as applicable, in all respect and in all manner diligently and strictly comply all requirements and provisions applicable with respect to amalgamation under the laws of Mauritius and shall ensure such compliance by the transferor companies. (e) upon the scheme being sanctioned, the transferee company shall take steps for striking -off the names of both the transferor companies in accordance with the Companies Act, Mauritius 2001. 16. The petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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