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APPLICABILITY OF SECTION 117 OF COMPANIES ACT, 2013 AND FILING OF e-FORM MGT-14 FOR AMALGAMATION OF COMPANIES

Corporate Laws / Banking / SEBI / LLP - By: - Mr.M. GOVINDARAJAN - Dated:- 13-3-2015 Last Replied Date:- 26-6-2015 - Introduction Chapter XV if the Companies Act, 2013 deals with the compromises, arrangements and amalgamations. Section 230 provides the power to compromise or make arrangements with creditors and members by the National Company Law Tribunal. The Tribunal may on the application of the company or of any creditor or member of the company, or in the case of company which is being wou .....

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owed till the provisions of Chapter XV are notified. Section 117 Section 117 of the Act provides that a copy of every resolution or any agreements in respect of matters- Special resolutions; Resolutions which have been agreed to by all the members of a company, but which, if not so agreed to, would not have been effective for their purpose unless they had been passed as special resolution; Any resolution of the Board of Directors of a company or agreement executed by a company, relating to th .....

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esolutions passed by a company according consent to the exercise by its Board of Directors of any of the powers under Section 180 (1) (a) and 180 (1)(c); Resolution regarding a company to be wound up voluntarily passed in pursuance of Section 304; Resolutions passed in pursuance of Section 179 (3); and Any other resolution or agreement as may be prescribed and placed in the public domain. together with the explanatory statement, if any, annexed to the notice calling the meeting in which the r .....

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e provisions of Section 117 of the Act and also to file MGT - 14 with relevant fees to Registrar of Companies is required or not, with reference to the decided case law in In Re. :- Sigma Soya Industries Pvt. Limited and Sigma Spice Industries Pvt. Limited 2015 (3) TMI 115 - GAUHATI HIGH COURT. Facts of the case The facts of the case run as follows: The petitioner filed the present petition under Section 391(2) and 394 of the Companies Act, 1956 in the matter of amalgamation between the petition .....

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02.2014. The Court also perused the petitioner for confirming the scheme of amalgamation in Form No. 40 and fixed for hearing. Notices were ordered to be advertised in the Assam Tribunal, Gauhati and Asomiya Pratidin , Gauhati not less than 14 days before the date fixed for hearing. Notice of the petition was also ordered to be served on the Regional Director, Company Law Board, Eastern Region, Shillong not less than 28 clear days before the date fixed for hearing. The Regional Director has file .....

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without winding up as per the provisions of Section 394 of the Companies Act, 1956 in the instant petition; The accounting treatment of asset and liabilities in the books of Transferee company shall be made at their respective book values and any deficit or surplus shall be adjusted against reserves only in terms of provisions of Accounting Standard 14. However, the surplus, if any, arising should be treated as general reserve since the nature of such gain/surplus has arisen out of amalgamation .....

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inserting the transferor company shall be dissolved without winding up to bring it in order; To amend such para of the scheme by inserting a para that any surplus arising out of the resultant acquisition in the books of the Transferee company. Submission of the petitioners In response to the submissions of the Regional Director, the petitioners submitted the following before the Company Court: It is already mentioned in clause 6 of the Part II of the Scheme of amalgamation the required informa .....

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as 1:1, no surplus shall arise post amalgamation. If any surplus accrues, the same shall be transferred to capital reserve and the scheme shall be amended accordingly as may be directed by the High Court; The provisions of Section 117 of the Companies Act, 2013 and filing of form MGT 14 are not required since clause 25 of the Articles of Association of the transferee company specifically states that the share capital can be altered by passing any ordinary solution; As stated in clause 101 of .....

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es. The Court accepted the contentions of the petitioner. The Court held that the observations of the Regional Director that the scheme may be suitably amended by inserting a sentence subject to compliance of the provisions of Section 117 of the Companies Act, 2013 in the last line of said para of the scheme are unnecessary. The Court further held that compliance with provisions of Section 117 of the Companies Act, 2013 and filing of e-form MGT - 14 are not required. The Court granted the prayer .....

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year 2002 has a bearing in the Companies Act. Now the Government is able to promulgate the new Companies Act, 2013 having 470 sections. It is unfortunate that all sections have not been implemented at the same time. Some Sections were made effective from 12.09.2014 and some sections were made effective from 01.04.2014. 283 sections have been notified and the remaining sections are yet to be notified. The provisions relating to Chapter XV to XX and other provisions relating to- Setting up of/ex .....

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ny areas. There are many confusing prevailing in the compliance. The present case law involves amalgamation of two companies. For the purpose resolutions has to be passed by Board, general meeting etc., Section 117 of the new Act provides for the compliance of filing the resolution to the Registrar of Companies. Chapter XV of the Act deals with the amalgamation process. But the provisions of Chapter XV have not yet been notified. Therefore there is no other way except to comply with the provisio .....

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e compliance of the same by the petitioner companies. The petitioners gave suitable replies for the second and third objections. The first prayer of Regional Director before the Company court is to direct the petitioner companies to suitably amend the scheme by inserting a sentence subject to compliance of the provisions of Section 117 of the Companies Act, 2013 in the last line of the said para of the scheme. According to this Section the Regional Director required the petitioners to file MGT-1 .....

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in pursuant to the sections 94(1), 117 (1) of the Companies Act, 2013 and Section 192 of the Companies Act, 1956 and rules made there under. Section 94 (1) provides that the registers required to be kept and maintained by a company under Section 88 and copies of the annual return filed under Section 92 shall be kept at the registered office of the company. The proviso to the said section provides that such registers or copies of return may also be kept at any other place in India in which more .....

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