TMI Blog1996 (3) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... contention of the petitioners that the application herein is not made bona fide . The application herein is dismissed with no order as to costs. On April 26, 1862, the Bombay Gas Company Limited was incorporated as a company in the U.K. under the Joint Stock Companies Act, 1856-57. The said company is now known as "The Bombay Gas Public Limited Company". The registered office of the said company was situated at 368( a ), Gray's Inn Road, London, WC IX 88, England, and its head office was situated at Empire House, 214, Dr. Dadabhoy Naoroji Road, Bombay 400 001. The said company was re-registered as a public company under the English Companies Act, 1948 to 1980, under its name "The Bombay Gas Public Limited Company". This company is now under winding up in the U.K. This company is hereinafter referred to as the British company. This company had considerable assets and business in India at the relevant time. Applicant No. 1 was a shareholder of this company at the relevant time. Applicant No. 2 claims to be the beneficial owner of certain shares of this company. On February 9, 1982, the Bombay Gas Company Private Limited ( i.e. , the petitioner herein) was incorporated as a pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred proceedings was non est, without jurisdiction and of no legal effect. The applicants in this application have claimed various other consequential reliefs, inter alia , on the ground of inherent lack of jurisdiction in this court in passing the impugned order and on the ground of alleged "fraud" on the court by reason of the alleged suppression of the fact that the name of the British company was struck off from the register prior to passing of the order dated January 29, 1988, and no order of amalgamation could be passed in respect of a non-existent company. The applicants have in substance contended that the impugned order dated January 29, 1988, is without jurisdiction and the impugned order suffers from total, patent and inherent lack of jurisdiction and is liable to be treated as nullity. The applicants have also contended that in any event the impugned order dated January 29, 1988, is liable to be recalled on the ground that the petitioner in Company Petition No. 134 of 1986 committed fraud on this court by suppressing the most material fact that on the date of sanction of the scheme the transferor company, i.e. , the British company was not in existence and had alre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No. 2 had sought the transfer of shares to his own name at one point of time, which transfer was declined. ( d )In the memorandum of association of Bombay Gas Company Private Limited, it is in terms stated that one of the main objects of the petitioner-company was as under : "(1)to acquire and undertake by amalgamation or otherwise, the whole or any part of the business, property and liabilities of 'Bombay Gas Company Limited' a company incorporated in England with its registered office at 368( a ) Gray's Inn Road, London, W.C. IX, 8BB England, and having its head office at Empire House, 214, Dr. Dadabhoy Naoroji Road, Bombay-400 001." ( e )Soon after the incorporation of the petitioner-company, a scheme of amalgamation in respect of the Indian undertaking of the British company along with its business assets, etc., situate in India was prepared by both the abovereferred companies. The said scheme was approved not merely by the board of directors of the two companies but was also approved by the Reserve Bank of India. The said scheme was approved by the shareholders of two companies as well. ( f )By clause 1 of the said scheme of amalgamation, it was pro vided that with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment as required by law. Ultimately, on January 29, 1988, passed on Company Petition No. 134 of 1986, as well as Company Petition No. 133 of 1986, the said scheme of amalgamation propounded by the two companies hereinabove was duly sanctioned by this court. The said scheme became effective and operative on January 29, 1988, in view of clause 20 of the scheme although the "appointed date" as set out in the said scheme for the purpose of identification of the Indian assets of the transferor company which were to stand transferred in favour of the transferee company was stipulated to be January 1, 1982, in the said scheme. The said scheme was duly acted upon for all these years. The petitioner-company allotted shares to all the erstwhile shareholders of the British company in terms of its obligation under clause 9 of the said scheme and forwarded bonus shares to the erstwhile shareholders of the British company. The petitioners herein have exercised ownership rights in respect of all the assets, business, contracts, etc., of the British company which were situate in India in view of the sanction of the court to the scheme of amalgamation as aforesaid. On October 7, 1986, the Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent angles as would be obvious from the discussion of the submissions made by learned counsel for the petitioner in the latter part of this order. Learned counsel for the applicants submitted that on January 29, 1988, when the scheme of amalgamation was sanctioned by this court the abovereferred British company known as "The Bombay Gas Public Limited Company", was not even in existence in view of the fact that its name was struck off from the register by the Registrar of Companies, U.K., by his order dated October 7,1986, passed in exercise of the powers conferred on him by section 652 of the English Companies Act, 1985, it being irrelevant that its name was later on restored to the register. It is not disputed that the Bombay Gas Public Limited Company was restored to the register by an order passed by the court in the U.K., on July 5, 1995, and the Registrar of Companies, U.K., has in fact certified that the said company was restored to the register on July 20, 1995, it may be stated in passing that by the same order the High Court of Justice further directed that the Bombay Gas Public Limited Company (being the company restored to the register) be wound up by the court und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f its incorporation, i.e. , January 29, 1988. Learned counsel for the petitioners submitted that the "effective date" referred to in clause 20 of the scheme was relevant for the purpose and not the "appointed date". On this aspect of the case, learned counsel for the petitioners rightly invited the attention of the court to the ratio of the judgment of the High Court of Delhi in the case of HCL Ltd., In re and HCL Hewlett-Packard Ltd., In re [1994] 80 Comp. Cas. 228 . This judgment is directly on the point raised by learned counsel for the applicants and is a complete answer to the contention raised on behalf of the applicants. I am in respectful agreement with the view taken by the High Court of Delhi in this case. In this case, the "appointed date" for transfer as set out in the scheme under consideration was fixed as July 1, 1990, although the transferee company was incorporated only on May 15, 1991. In this case, it was contemplated that certain divisions of the transferor company will be transferred to the transferee company to be newly incorporated. In this case, learned counsel for the respondents did oppose the scheme of arrangement sought to be sanctioned on the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olved in the country of its incorporation on January 29, 1988. The court shall have to assume that the British company existed throughout till July 5, 1995, and was directed to be wound up by the court in the U.K. only on July 5, 1995. On this aspect of the case, the applicants have filed a further affidavit of Shri Ashok Kumar Jalan, applicant No. 2, being affidavit dated January 19, 1996. In response to the said affidavit the petitioners filed an affidavit of Mr. S.L. Makhijani, being affidavit dated February 9, 1996. It appears that the petitioner-company had ceased to carry on its main business in India by the time the petition for sanction of the scheme of amalgamation was filed in this court by the two companies referred to hereinabove. It is, however, obvious from the statements appearing in the affidavit of Mr. S.L. Makhijani dated February 9, 1996, that the British company had not altogether ceased to carry on its business in India on the relevant date. Learned counsel for the company has submitted that, that, however, makes no difference having regard to the true interpretation of the relevant provisions of the Companies Act, 1956, and the applicable provisions of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel for the petitioner-company appears to be completely right in respect of the submissions made by him on this aspect of the case. Learned counsel for the petitioner-company rightly invited the attention of the court to the judgment of the High Court of Madras in the case of Travancore National and Quilon Bank, In re [1939] 9 Comp. Cas. 14, 21 ; AIR 1939 Mad 318. In this case, it was held by the court that a foreign company was liable to be wound up as an unregistered company under the Indian Companies Act, 1913. At pages 321-322, Venkataramana Rao J. speaking for the court, observed as under : "There can be no doubt that the Travancore National Bank though incorporated outside British India and, therefore, a foreign company, would be an unregistered company within the meaning of sections 270 and 271 of the Act." In the latter part of the same judgment the court observed that a foreign company could be wound up by the High Court as an unregistered company. It is not necessary to examine this line of argument in detail as this court is mainly concerned in this application only with the question of jurisdiction of this court to sanction the scheme of amalgamation pert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ression means any company which is subject to the winding up provisions contained in the Act. Section 390( a ) of the Act is thus applicable to bodies incorporated outside India. If the court has jurisdiction to wind up a company on any of the grounds specified in the Act, whether an Indian company or a foreign company, it follows that such a company is liable to be wound up under the Act on proof of applicable grounds for winding up and such a company is subject to the jurisdiction of the court to sanction the scheme of its amalgamation with the company incorporated under the Companies Act, 1956. The impugned order is thus valid and not shown to be non-est, from whichever angle the matter is examined. Learned counsel for the petitioner has cited several authorities at the Bar in support of his submission. I have considered all the authorities and the statutory provisions relied on by learned counsel. I do not consider it necessary to discuss all the cases cited at the Bar and have referred to only the relevant case law directly in the point. The authorities cited are listed below : Tymans Ltd. v. Craven [1952] 1 All ER 613 (CA); Purushottamdass v. Registrar of Companies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e unregistered companies or the foreign companies to be in a position to invoke the provisions of sections 391 and 393 of the Companies Act, 1956. I am in respectful agreement with the view taken by Mridul J. in this case. There appears to be a preponderance of judicial opinion on this aspect supporting the abovereferred interpretation of the relevant provisions. Learned counsel for the applicant then submitted that the impugned order is liable to be recalled on the ground that the applicant company had suppressed the fact of striking off the name of the British company from the register while seeking sanction of the court to the scheme of amalgamation on January 29, 1988. Learned counsel for the applicants submitted that if this court had been informed of the fact that the name of the British company was already struck off from the register by an order passed by the Registrar of Companies, U.K., on October 7, 1986, this court would not have passed an order sanctioning the scheme of amalgamation. On this aspect of the case, learned counsel for the applicants also submitted that the fact of restoration of the company to register by an order passed by the English court on July 5, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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