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TMI Blog2017 (10) TMI 1195X X X X Extracts X X X X X X X X Extracts X X X X ..... ich proposed to enter into a Scheme of Amalgamation, the applicant is a registered partnership firm. 5. It is stated in the application that a company is a body corporate and a partnership is also a body corporate. As such, both company and partnership are body corporates. It is stated that a company and a body corporate are to be considered and treated as synonyms for the purpose of presenting a scheme of arrangement under sections 230 to 232 of the Companies Act, 2013. 6. The definition of "body corporate" is there in section 2(11) of the Companies Act, 2013, which reads as under :- "2(11) "body corporate" or "corporation" includes a company incorporated outside India, but does not include- (i) A co-operative society registered under any law relating to co-operative societies; and (ii) Any other body corporate (not being a company as defined in this Act), which the Central Government may, by notification, specify in this behalf" 7. It is stated that in view of Section 2(95) of the Companies Act, words and expressions used and not defined in the Act but defined in the Securities Contracts (Regulation) Act, 1956 or the Securities and Exchange Board of India Act, 1992 or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion "Foreign Company'' means any company or body corporate incorporated outside India whether having a place of business in India or not. 9. Learned counsel appearing for the applicant referring to the above said provisions and relying upon the decisions of Bombay High Court in Philip J. v. Ashapura Minechem Ltd. & Another, reported in 2016 (4) Mh. L.J., 169, Kerala High Court in Co. Pet. No. 30/2014 in the matter of Manjilas Agro Foods (P.) Ltd. and High Court of Calcutta in the matter of Rossell Industries Ltd., In re [1995] 6 SCL 79 (Cal.) contended that the applicant, which is a registered partnership firm, is a body corporate and, therefore, the Scheme of Amalgamation in respect of the applicant company shall be permitted to be initiated. 10. The crucial question that needs determination is whether a registered partnership firm, being a body corporate, can be treated as a "company" for the purpose of Sections 230-232 of the Companies Act, 2013. Section 2(20) says that a "company" means a company incorporated under the Companies Act, 2013 or under any previous company law. Admittedly, the applicant is not a company incorporated under the Companies Act, 2013 or under any othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ship firm unless registered under the Companies Act by making use of Section 366 of the Companies Act cannot be included as a company and if such an adventure is made, it goes against the definition of "company" in sub-section (20) of Section 2 of the Act. No doubt, Explanation (b) of sub-section (4) of Section 375 of the Act says that for the purpose of that Part, expression "unregistered company" includes a partnership firm. Part II of Chapter XXI of the Companies Act, 2013 deals with winding up of unregistered companies. It starts from Section 375 and ends with Section 378. The relevant provisions relating to Compromises, Arrangements and Amalgamations are inserted in Chapter XV of the Companies Act, 2013 from Section 230 to Section 240. Moreover, even from the understanding of Section 375, the applicant-registered firm can only be treated as an unregistered company. An unregistered company cannot be called as a "company" within the meaning of Section 2(20) of the Companies Act, 2013. 13. Here it is necessary to refer to Section 394(4)(b) of the Companies Act, 1956. The said Act specifically says that a "transferee company" does not include any company other than a company with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the applicant referred to the decision of Honourable Bombay High Court in Philip J. (supra),which deals with the offence of dishonour of cheque by company. Their Lordships of the Bombay High Court, referring to Sections 141 and 138 of the Negotiable Instruments Act, held that when a company is held to be essential party and arraigning of a company as an accused is imperative for prosecution, it necessarily follows that in the case of a partnership, the same analogy applies and, therefore, the partnership firm shall also be shown as accused and, if not shown as an accused, the prosecution must fail. It is not known how the said decision is applicable to the controversy involved in this application. In this case, the applicant is not being prosecuted for any offence. The applicant wants to participate as one of the transferor companies in a Scheme of Amalgamation. If the applicant satisfies that it is a company, then it can be added. If the applicant does not satisfy that it is company registered under the Companies Act, 2013, then it is not entitled to pursue the Scheme of Amalgamation. In that view of the matter, the above decision of the Bombay High Court is not at all applicabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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