TMI Blog2014 (10) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... roy its books of accounts and other connected papers without the prior consent of the Central Government and shall preserve the same. All the three petitions are allowed and disposed of accordingly. - COMPANY PETITION NO. 152 of 2014 In COMPANY APPLICATION NO. 79 of 2014 With COMPANY PETITION NO. 153 of 2014 In COMPANY APPLICATION NO. 80 of 2014 TO COMPANY PETITION NO. 154 of 2014 In COMPANY APPLICATION NO. 81 of 2014 - - - Dated:- 8-10-2014 - HONOURABLE MR.JUSTICE N.V.ANJARIA MRS SWATI SOPARKAR, ADVOCATE FOR THE PETITIONER MR DEVANG VYAS, ADVOCATE FOR THE RESPONDENT COMMON ORAL ORDER The captioned are the petitions filed by three companies for obtaining a sanction of this court to the Scheme of Arrangement in the nature of Amalgamation under Sections 391 to 394 of the Companies Act, 1956. The Scheme of Amalgamation is amongst Quintiles Technologies(India) Private Limited and Quintiles Data Processing Center (India) Private Limited-the two transferor companies and the petitioners of Company Petition No. 152 of 2014 and Company Petition No. 153 of 2014 in that order and the transferee company-Quintiles Research (India) Private Limited, being the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the companies, recorded the said order dated 25th March, 2014. The meetings of the unsecured creditors of both the transferor companies were directed to be convened. Pursuant to the direction issued with regard to the conduct of the meetings, after the due service of individual notice to all the unsecured creditors of the transferor companies, as well as after giving public notice, the said meetings were duly convened on 12th May, 2014. The Scheme was considered at the said meetings and it was approved unanimously that is by (the respective unsecured creditors present and casting the valid votes) being 100% in number and 100% in value at both the meetings. The result of these meetings was placed on record in form of Chairman s reports dated 11th June, 2014. 5.1 Similarly, in case of the transferee company, by virtue of order dated 25th March, 2014, the meeting of the equity shareholders was dispensed with in view of the letters giving written consent by all the equity shareholders, placed on record. There are no secured creditors of the transferee company. The meeting of the unsecured creditors was dispensed with accepting the submission that all the petitioner companies hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the said issue is settled by a series of judgments. Reliance was placed on decisions of several High Courts beginning from decision of Hon ble Culcutta High Court in Marybong Kyel Tea Estate Ltd [47 Comp. Cases 802], and EITA India Limited [99 Comp. Cases 276]. It is not necessary for the purpose of Scheme of Arrangement under Section 391 of the Companies Act, 1956 that the Memorandum of Association of the transferee company must contain an enabling clause as part of its Memorandum of Association. The contention of the Regional Director is devoid of substance and stand negated. 7.2 The second observation is in respect of determination of share exchange ratio and it is observed by the Regional Director that though the share exchange ratio is based on the valuation report of M/s Deloitee Touche Tomatsu India Private Limited, the working notes are not provided for the same and that the petitioners be directed to place the same on record. 7.2.1 It was submitted that all the petitioner companies are private limited companies and belong to the same group of management. All the petitioner companies are indirect subsidiaries of the same holding company. There is no public interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. Where the treatment is so prescribed, the same is followed. In some cases, the scheme of amalgamation sanctioned under a statute may prescribe a different treatment to be given to the reserves of the transferor company after amalgamation as compared to the requirements of this Statement that would have been followed had no treatment been prescribed by the scheme. In such cases, the following disclosures are made in the first financial statements following the amalgamation: (a) A description of the accounting treatment given to the reserves and the reasons for following the treatment different from that prescribed in this Statement. (b) Deviations in the accounting treatment given to the reserves as prescribed by the Scheme of amalgamation sanctioned under the statute as compared to the requirements of this Statement that would have been followed had no treatment been prescribed by the scheme. (c) The financial effect, if any, arising due to such deviation. 7.3.2 The above makes it clear that a company is entitled to prescribe under Scheme itself, a specific treatment to be given to its reserves. Further, Section 211(3B) of the Companies Act, 1956 provides tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght of the company under the provisions of the Companies Act to amalgamate with another company and for that, it is not necessary that a specific clause in that regard has to exist in the Memorandum of Association. Even in absence of such clause, the statutory right is available. 8.2 It may be stated that the second proviso to Section 394 which deals with the provisions for facilitating reconstruction and amalgamation of the companies, says that no order of dissolution of any transferor company under clause (iv) shall be made by the court, unless the official liquidator has, on scrutiny of books and the papers of the company, made a report that the affairs of the company have not been conducted in a manner prejudicial to the interest of its members or to the public interest. The role of the official liquidator is, thus, defined and he is to get the books and papers scrutinized and make a report. His report has to be only on the aspect whether the affairs of the company conducted are not adverse to the interest of the members or the public interest. Learned advocate for the petitioner contended that in the context above in raising the issue about absence of amalgamation clause in ..... 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