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TMI Blog2011 (3) TMI 1483X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ltd. (hereinafter referred to as the "transferor company") with Luxmi Tea Co. Ltd. (hereinafter referred to as the "transferee company"). 3. In pursuant to the order passed by this court in Company Application No. 2 of 2010, a meeting of holders of equity shares of transferor company was held on March 27, 2010, for considering the scheme of amalgamation. In the meeting so held, presided over by the court appointed chairman, the shareholders of the transferor company present in the meeting, unanimously adopted the following resolution : "Resolved that the scheme of arrangement for amalgamation of Bhuyankhat Tea Co. P. Ltd., with Luxmi Tea Co. Ltd., being annexure A in Company Application No. 2 of 2010, a copy whereof is placed before thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e scheme." 7. In so far as objection (a) of the Central Government is concerned, in the reply affidavit filed by the petitioner it is conceded that the Accounting Standard is required to be followed by the petitioner-company and accordingly it is declared that the Accounting Standard 14, notified by the Central Government under section 211(3A) of the Companies Act, 1956, will have to be followed by the petitioner-company notwithstanding anything to the contrary, contained in the scheme of amalgamation. 8. For objection (b) of the Central Government, Mr. Bhaskar Sen, learned counsel for the petitioner submits that amendment in the memorandum of association of the petitioner-company is not a pre-requisite in case of a statutory process of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er company will take necessary steps to come before a court for alteration of its memorandum in aid of such amalgamation. The statute confers a right on a company to alter its memorandum in aid of amalgamation with another company. The provisions contained in sections 391 to 396 and 494 illustrate some instances of statutory power of amalgamating a company with another company without any specific power in the memorandum." E.I.T.A. India Ltd. v. Narayan Prasad Lohia [2000] 99 Comp. Cas. 276 where the Calcutta High Court held that (page 281) : "In the instant case, there cannot be any dispute that all these formalities under the statutes have been complied with and the petition has been properly made under section 391(2) of the Companies A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the fact that the memorandum of association of a particular company may not contain express power to amalgamate with another company." The Delhi High Court also in the case reported in Highland Electro Appliances (P.) Ltd., In re [2003] 42 SCL 516 recorded the following : "It is quite clear that the powers of the court under sections 391 to 394 are not circumscribed or predicated on the applicant-company possessing powers under its objects clause to amalgamate with any other company. As has been observed by the Division Bench of the Calcutta High Court, if such a power is in fact contained in the memorandum of the respective companies, those companies need not seek the imprimatur and approval of the company judge and may initiate and ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies to amalgamate with any other company as there is a statutory power of amalgamation under the said section. I may also refer to an unreported judgment of mine in United Bank of India Ltd. v. United India Credit and Development Co. Ltd. [1977] 47 Comp Cas 689 (Cal), which is under appeal, where I have held the same view as I am doing here as to the statutory power to amalgamate without any specific power for amalgamation in the memorandum of association of a company'." 10. Mr. R. Sarma, learned Assistant Solicitor General of India in his reply concedes that since the amalgamation sought by the petitioner is on the basis of the court's sanction, in view of the law laid down in this regard by the different High Courts of the country th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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