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WHETHER COURT ORDER SANCTIONING AMALGAMATION IS AN INSTRUMENT?

Corporate Laws / Banking / SEBI / LLP - By: - Mr.M. GOVINDARAJAN - Dated:- 5-1-2016 - Instrument A document creating or transferring a right is an instrument. Can it be said that an order effectuating the transfer is a document? In Haji Sk. Subhan V. Madhorao - 1961 (10) TMI 79 - SUPREME COURT the Supreme Court held that the question is whether the word document includes a decree of the Court. There was no good reason why a decree of the court when it affects the proprietary rights and is in re .....

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the shareholders and creditors the decision of the majority in this regard binds all the creditors and the shareholders. The scheme after being sanctioned by the Court binds all its creditors, members and shareholders including even those who were opposed to the scheme being sanctioned. It binds the company as well. Section 394 (2) of the Companies Act, 1956 provides that the properties and liabilities of the transferor company stand transferred to the transferee company by virtue of an order o .....

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t length. The Court held that it is the court order that effects the transfer and this is nonetheless so because the scheme is not operative until an office copy has been delivered to the Registrar of Companies for registration, for the court order itself ordered that to be done and the Act so provides. The Court further considered as to whether the order of the Judge is an instrument executed in any part of the United Kingdom for the purposes of stamp duty. It was held that it was an instrument .....

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on, as sanctioned by the High Court. On presentation of the certified copy of the court s order of the Registrar of Companies, Maharastra issued a certificate amalgamating the two companies. The authorities under the Bombay Stamp Act, 1958 demanded stamp duty on the transfer of assets and properties effected under the scheme of amalgamation as ordered by the Bombay High Court. The Hindustan Level Limited filed a writ petition before the Bombay High Court challenging the constitutional validity o .....

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to stamp duty. The HLL contended the following before the Supreme Court: An order of amalgamation under Section 394 is not under simplicitor of transfer of property by an act of parties with imprimatur of the court; It is an order made by the Court after judicial scrutiny and transfer of the property under such an order would not be an act of parties to which the Court puts its seal of approval; Stamp duty can be levied on documents or instruments ; The order of the Court in exercise of its judi .....

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