TMI Blog2008 (8) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... HIMANI, J. K. Ramasamy and C.V. Ramachandra Murthy for the Petitioner. Jayakumar for the Official Liquidator. ORDER 1. These company petitions are preferred under sections 391 to 394 of the Companies Act, 1956 for sanctioning the scheme of amalgamation of the transferor companies, petitioners in C.P. Nos. 152 and 153 of 2009 with the transferee company, petitioner in C.P. No. 154 of 2009 with effect from 1-4-2009. The scheme of amalgamation is annexed as Annexure C in each of the petitions. 2. The petitioner in C.P. No. 152 of 2009 is the first transferor company; the petitioner in C.P. No. 153 of 2009 is the second transferor company and the petitioner in C.P. No. 154 of 2009 is the transferee company. 3. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital will not come within the purview of transfer of liabilities under the scheme of amalgamation. ( c )The transferor company and the transferee company have separate legal entities. On amalgamation, the transferor company will be dissolved and only the transferee company exists. At this stage, if the transferee company on account of scheme of arrangement, increases its authorised capital, it has to be comply with the provisions of sections 94 and 97 of the Companies Act, 1956 by filling relevant returns with the Registrar of Companies with the Registration fee/filing fee. ( d )The Companies Act does not specifically exempt the Transferee company on account of scheme of arrangement from payment of Registration fee for increase of it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D India Ltd., In re ( supra ) relied upon by the appellant. In the said judgment, the Calcutta High Court has held that the right to increase its paid-up capital to its authorised limit, is a right unique to each Company and incapable of being transferred, just as the fee paid for registration of the Company is also incapable of being transferred and consequently, a separate fee would be payable under section 95 read with section 97 of the Act. We are unable to agree with the reasoning of the learned Single Judge. The issue is not whether the fee, which is already paid by the transferor company would automatically be transferred to the transferee company. But, what is intended by section 391 of the Act is to reconstitute the Company witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in the office of the Registrar of Companies were also caused to be inspected by the said Chartered Accountant. In the absence of any inference that the affairs of the transferor company were being conducted in a manner prejudicial to the interest of its members or public interest, and in the absence of any comments that the affairs of the transferor companies conducted in a manner prejudicial to its members, the Official Liquidator has filed his report before this Court for orders. 10. However, in the report, the Official Liquidator has referred to some observations of examining the balance sheet of the transferor company as on 31-3-2008, which are as follows: "( a )Sundry Debtors considered doubtful - Rs. 1,91,99,000 under this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners that the issue has already been dealt with by the judgment of the Andhra Pradesh High Court in Nav Chrome Ltd., In re [1997] 89 Comp. Cas. 285 1 , wherein it was held as follows : "Held ( i ) that it was well-settled that the official liquidator had no say in the share-exchange ratio, when the shareholders of the companies had approved of it. ( ii )That the condition as to the lock-in period was stipulated at time of public issue and was no longer relevant. ( iii )That apart from the fact that official liquidator was only concerned with certifying under proviso to section 394 of the Companies Act, 1956, that the affairs of the transferor company did not appear to have been conducted in any manner prejudicial to the int ..... X X X X Extracts X X X X X X X X Extracts X X X X
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