TMI Blog2008 (4) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... areholders. Therefore, this objection also be rejected. As regards the third objection no shareholder has filed any objection to the scheme and it is only at the meeting that four shareholders have voted against the scheme. Therefore, the third objection be rejected. The scheme cannot be faulted on a mere apprehension or speculation as to what might happen in future. The present is certain. No objection has been filed to the scheme after advertisements. The fourth objection is not pressed, as the quarterly financial results were open for inspection as will be borne out from the explanatory statement. The fifth objection cannot be sustained as North India Plantation Division was an undertaking of the transferor-company and has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dification. The said will appear from the chairperson s report of the transferor and transferee-companies. 3. Twenty-seven advertisements were published and from the explanatory statement it will appear that documents were open for inspection including the quarterly financial results as on June 30, 2006, September 30, 2006 and December 31, 2006, of the transferor-company. 4. As the shareholders have approved the scheme of amalgamation without any modification and as held in A.W. Figgis Co. (P.) Ltd., In re [1980] 50 Comp. Cas. 95 (Cal.), the shareholders are the best judge of the fairness and reasonableness of a scheme, the scheme ought to be sanctioned. 5. Non-appearance of shareholders in spite of notice should be assumed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 293 of the Companies Act with the consent of the board of directors and therefore this method need not be adopted. 9. The second objection raised is that no provision for interest has been made in case of delay in payment. The shareholders will not benefit from payment made within a year from the effected date. There is also no provision in the scheme regarding utilization of Rs. 334 crores and there is every possibility of substantial reduction of the earnings of the transferor-company. 10. The third objection is that the scheme has not been passed by a majority as four shareholders have voted against the scheme. 11. The fourth objection raised relates to approval of the scheme on the basis of balance-sheet as on March 31, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pital for allotment of shares to the transferor-company. Therefore, the objection raised is unfounded. 16. No allegation of fraud or any illegality in the scheme has been alleged by the shareholders. The said scheme has been approved at a meeting held by the chairpersons appointed by the court and transfer approved by shareholders as held in A.W. Figgis Co. P. Ltd., In re ( supra ) ought to be respected. 17. It is the company s assets which are being transferred and the shareholders have no right in the assets of the company as long it is a going concern. A single window clearance is permitted as held in Maneckchowk Ahmedabad Mfg. Co. Ltd., In re [1970] 40 Comp. Cas. 819 (Guj.) and PMP Auto Industries Ltd., In re [1994] 80 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of payment of stamp duty cannot arise in view of the decision in Madhu Intra Ltd. ( supra ). The shareholders have no right in the assets of the company as long as it is a going concern and a single window clearance is permitted as held in Maneckchowk Ahmedabad Mfg. Co. Ltd., In re ( supra ) and PMP Auto Industries Ltd., In re ( supra ). For the said reasons the first objection be rejected. Section 6( e ) of the Transfer of Property Act, 1882, is not applicable in transfer by court, therefore payment of stamp duty is not attracted. 20. With regard to the second objection clause 10.3 of the scheme of arrangement postulates payment to the transferor-company within such time as may be mutually agreed but not less than a y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion was an undertaking of the transferor-company and has been shown as an asset of the transferor-company in its balance-sheet. 24. The sixth objection cannot be sustained in view of clause 10.3 of the scheme wherein the consideration has been mentioned and it is only if considered necessary for effective functioning of the transferee-company that additional assets may be transferred. Such transfer is also subject to terms and conditions agreed. This is contingent in nature and for the same provisions have been made and agreed by the shareholders. This can only be fixed on the happening of the event and not prior thereto. Therefore, this objection can also not be sustained and is accordingly rejected. 25. There can be no dispute re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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