9911796707
TMI Blog2008 (8) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... d the petitioner in CP No. 118 of 2008 is the transferee company. A perusal of the records show that the petitioners have complied with the prescribed procedure. The certificate from the chartered accountant certifying that there are no secured creditors as far as the transferor company is concerned, petitioner in C. P. No. 117 of 2008, is enclosed as annexure 5. The transferee company, petitioner in C. P. No. 118 of 2008, has obtained consent letters from their secured creditors, which are annexed as annexures Nos. 6 and 7. The copy of the resolution dated February 1, 2008/ of the board of directors adopting the scheme of amalgamation is enclosed as annexures Nos. 4 and 5 respectively to the respective petitions. The consent affidavit fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution in the scheme approved by the shareholders. Therefore, the scheme has to be amended suitably. 5. Clause 8 of the scheme contemplates the combining of the authorised capital of the transferor company with the authorised capital of the transferee company which is not tenable on the following grounds : (a)The authorised capital of the company is a notional limit up to which the company can increase its paid-up capital. Hence, two notional limits cannot be clubbed together. (b)The authorised capital of the company is not a liability like other liabilities which are to be returned or refunded. Hence, the authorised capital will not come within the purview of transfer of liabilities under the scheme of amalgamation. (c)The transferor co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bing the authorised capital of the transferor company with the transferee company, though new shares of about 14.050 are allotted to two shareholders of the transferor company by transferee company." As regards the third objection of the Regional Director on the clubbing of two notional limits, as rightly submitted by learned counsel for the petitioners, in the light of the decision of this court in the case of Cavin Plastics and Chemicals P. Ltd., In re [2006] 129 Comp. Cas. 915, the objection is no longer res integra and hence, the objection of the Regional Director does not survive for consideration. As regards the objection that the basis of the exchange ratio of 1 : 4 is not disclosed, learned counsel appearing for the petitioner poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to order. In the circumstances, I do not find any merit in the objections taken in the report of the Regional Director, Consequently, they stand overruled. The official liquidator has filed his report along with the report of the chartered accountant. The report of the chartered accountant states that the affairs of the transferor company have not been conducted in a manner prejudicial to the interest of its members or to public interest and they do not come across any act of misfeasance by the directors attracting the provisions of sections 542 and 543 of the Companies Act, 1956. It is further stated that the records maintained in the office of the Registrar of Companies were also caused to be inspected by the said chartered accountant. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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