TMI Blog2009 (8) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... olders of Applicant-Company shall be convened and held at the Registered Office of the Applicant-Company at Pratapnagar Industrial Area, Udaipur, Rajasthan on 10-9-2009 at 11:30 AM for the purpose of considering and if thought fit approving with or without modifications, the Scheme of Amalgamation proposed to be made between the transferor-company and transferee-company. - S.B. COMPANY APPLICATION NO. 3 OF 2009 - - - Dated:- 4-8-2009 - PRAKASH TATIA, J. Manish Shishodia for the Applicant. ORDER 1. Heard learned counsel for the applicant. 2. The applicant-ESL India Limited, a company incorporated and registered under the provisions of Companies Act, 1956, has submitted this application under sections 391-394 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned subsidiary of the transferee-company. Hence with a view to maintain a simple corporate structure and eliminate duplicate corporate procedures, it is desirable to merge and amalgamate all the Transferred Undertakings of Transferor-Company into the Transferee-Company and thereafter, liquidate the Transferor-Company without winding up through this Scheme of Amalgamation in terms of the provisions of sections 391-394 of the Companies Act, 1956. ( ii )The amalgamation of all Transferred Undertakings of Transferor-Company into the Transferee-Company shall facilitate consolidation of all the undertakings in order to enable effective management and unified control of operations. 4. The applicant is seeking sanction of this Court under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leased to pass such other and further orders as are deemed necessary in the facts and circumstances of the case." 5. So far as the petitioner s prayer that the transferee-company may be dispensed with from approaching the High Court for seeking the sanctioning of the Scheme of Amalgamation under sections 391-394 of the Act, it has been submitted by learned counsel for the applicant that the Mumbai High Court in the judgments delivered in the cases of (1) Mahaamba Investments Ltd. v. IDI Ltd. [2001] 33 SCL 383 (Bom.) and (2) Company Application No. 994/2008 ( Lotus Trading Corpn. Ltd. ); the Delhi High Court in the judgments delivered in the cases of (1) Dabur Foods Ltd., In re [2008] 88 SCL 325 and (2) Sharat Hardware Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allotted of the transferee-company to the share-holders of the transferor-company and that will be because the transferee-company holds 100 per cent of the share capital of the transferor-company. 8. Similar question came up for consideration of Mumbai High Court in the case of Bank of India Ltd. v. Ahmedabad Mfg. Calico Printing Co. Ltd. [1972] 42 Comp. Cas. 211 in which, considering the judgment of Delhi High Court delivered in the case of Sharat Hardware Industries (P.) Ltd. ( supra ), the Court held that, "if a scheme by way of transfer of undertaking does not affect the rights of the members or creditors of the transferee-company, as between themselves and the company, or does not involve a reorganisation of the share capi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union Services (P.) Ltd. In re [1973] 43 Comp. Cas. 319 , that without the approval of the transferee-company, the scheme could not have been passed by the members of the petitioner-company and secondly, the scheme could not have been put forward as a proposal unless there was an arrangement between both the companies. 10. In the case in hand before this Court, the petitioner also has placed on record the resolution of the Board of Directors of the transferee-company approving the scheme of amalgamation as Annexure-D ( ii ). Therefore, from the above judgments as well as judgments referred supra, it is clear that in the facts circumstances which are available in this petition, the transferee-company can be dispensed with from approachi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s aforesaid, a notice convening the said meeting at the place and times aforesaid together with a copy of the said Scheme of Amalgamation, a copy of the statement required to be sent under section 393 of the Companies Act, 1956 and a form of proxy shall be sent by a prepaid letter posted under certificate of posting addressed to each of the Equity Shareholders entitled to attend whose meeting is to be held at their respective registered or last known addresses. 16. The voting by proxy is permitted provided proxies in the prescribed form duly signed by the person entitled to attend and vote at meeting is filed at the registered office of the company not later than forty eight (48) hours before the meeting. 17. The Advocate for the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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