9911796707
TMI Blog2015 (2) TMI 1358X X X X Extracts X X X X X X X X Extracts X X X X ..... nsferor Company, it was incorporated under the Companies Act, 1956, on 12.11.2003. A copy of the Memorandum and Articles of Association is marked as Annexure-1. The Authorised Share Capital as on 31.03.2014 is Rs. 2,18,00,00,000/- , 21,80,00,000 equity shares of Rs. 10 each. Issued, Subscribed and Paid-up Share Capital of the petitioner Company as on 31.03.2014 is Rs. 1,14,16,41,600/-, 11,41,64,160 equity shares of Rs. 10 each. A copy of the latest financial statement as on 31.03.2014 is marked as Annexure-2. The Board of Directors as its meeting held on 20.10.2014 approved the Scheme of Amalgamation, subject to confirmation by this Court. A copy of the said Board Resolution is marked as Annexure-3. Under the Scheme, the entire undertaking of the Transferor Company would stand transferred to theTransferee Company on and from 01.04.2014. The Scheme of Amalgamation is marked as Annexure-4. Pursuant to this Scheme, the Transferor Company shall issue and allot equity shares of Rs. 10/- each, as fully paid-up at par to each shareholder of the Transferor Company in the ratio of 26 equity shares of Rs. 10 each fully paid-up of the Transferee Company to be issued for every ten equity share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly paidup of the Transferor Company, held by the shareholder. The original valuation report is marked as Annexure-6. The Transferee Company has no secured creditors. The Certificate issued by the auditor of the Transferee Company stating that there are no secured creditors is marked as Annexure-7. The number of equity shareholders in the Transferee Company is two and the said list is marked as Annexure-8. In Company Application No.1102 of 2014, this Court, by order dated 21.11.2014, has dispensed with the convening, holding and conducting meeting of the equity shareholders of the petitioner Company for the purpose of considering, and if thought fit, approving with or without modification, the Scheme of Amalgamation. 5. The assets of the Transferor Company and the Transferee Company are more than sufficient to meet the liabilities of both Companies and the said Scheme will not adversely affect the rights of any of the creditors of the petitioner Company. The proposed Scheme of Amalgamation is beneficial to both Transferor and the Transferee Company. 6. A perusal of the records show that the petitioners have complied with the prescribed procedure. In the Transferor Company viz., p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regional Director, Ministry of Corporate Affairs has filed his report. In this case, the transferee company takes over the name of the first transferor company, for which, there appears to be a technical objection raised by the Regional Director, Ministry of Corporate Affairs. Since a comprehensive order is being passed for amalgamation of both the transferor companies with the transferee company and only after sanctioning of the scheme, the scheme of amalgamation provides for change of name as per paragraph 14.1 of the scheme, the question of existence of the first transferor company does not arise. The objection that it will be against the guidelines of the Ministry of Corporate Affairs also does not arise, as the transferee company alone will be in existence after amalgamation of the two transferor companies with the transferee company." Relying on the above decision, learned Senior Counsel for the petitioners would submit that the objection of the Regional Director that it will be against the Circular of the Ministry of Corporate Affairs does not arise for consideration, as the Transferee Company alone will be in existence after amalgamation of the Transferor Company with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 991: (1994) 80 Comp Cases 289 (Bom) in (PMP Auto Industries Ltd., In re). 9. Our High Court has in paragraph 8 of its judgment, dealt with the objection regarding change of name and necessity for compliance of Sections 21 and 23 of the Companies Act which reads as follows:- 8. It may be noted that as per clause 15 of the scheme, upon the scheme becoming effective, the name of the transferee company shall be changed to Mehala Machines India P. Ltd. Normally but for the scheme presented under section 391 of the Companies Act to effect such a change in the name of a company, the procedure, under section 21 of the Companies Act has to be complied with. So too the provisions of section 44 of the Companies Act. However, in terms of the scheme passed by the requisite majority as laid down under section 391 of the Act complying with the procedure, laid down thereon, I do not find that there exists any necessity to have a repeated exercise of the same in terms of section 21 of the Act. It may be noted that Chapter V is a complete code by itself on the subject of arrangement/compromise and reconstruction comprehensive enough to include a change in the name consequent on the amalgamation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt challenges the power of the Respondent Company to issue Bonus Shares out of Revaluation Reserve on three grounds viz.(a) that the Bonus Shres had been issued contrary to SEBI guidelines, (b) their issue is contrary to the Circular of the Department of Company Affairs dated 6 th September, 1994 and (c) that the issue could not have been made as it is contrary to Article 182 of the Articles of Association of the Company. 6. The SEBI guidelines, which have been relied upon, were clarified on 13 th August, 1992 wherein it has been stated that these guidelines do not apply to issue of securities by existing private/closely held and other unlisted companies. In view of this clarification, we see no infirmithy in the impugned judgment wherein it has been held that the SBI guidelines were not applicable to the Respondent Company. 7. We are also in agreement with the observation, in the impugned Judgment, to the effect that the Circular dated 6 th September, 1994 does not have any mandatory effect. These Circulars are merely advisory in character." Relying on the above judgment, learned Senior Counsel would submit that the Circulars of the Department of Company Affairs are not hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue a fresh certificate of incorporation with the new name and the change in the name shall be complete and effective only on the issue of such a certificate. (4) The alteration of the memorandum relating to the place of the registered office from one State to another shall not have any effect unless it is approved by the Central Government on an application in such form and manner as may be prescribed. (5) The Central Government shall dispose of the application under sub-section (4) within a period of sixty days and before passing its order may satisfy itself that the alteration has the consent of the creditors, debenture-holders and other persons concerned with the company or that the sufficient provision has been made by the company either for the due discharge of all its debts and obligations or that adequate security has been provided for such discharge. (6) Save as provided in Section 64, a company shall, in relation to any alteration of its memorandum, file with the Registrar- (a) the special resolution passed by the company under sub-section (1); (b) the approval of the Central Government under subsection (2), if the alteration involves any change in the name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 21 of the Companies Act, as amended as Section 13 of the 2013 Act, has to be complied with. However, it may be noted that on conversion, a company does not cease to exist to bring into existence any new company. In the Scheme of things to emerge on an amalgamation, a Transferor Company is united with the Transferee Company. The Scheme herein contemplates a change in their name. In the face of such facts, the question is whether the petitioner is to be subjected to the procedure under Section 21 of the Companies Act, as amended as Section 13 of the 2013 Act. This Section requires special resolution to be passed on the proposed change of name of the company and the approval of the Central Government thereupon for changing the company's name. It may be noted that Chapter V is a complete code by itself on the subject of arrangement/ compromise and reconstruction. It may be noted that Chapter V is a complete code by itself on the subject of arrangement/compromise and reconstruction comprehensive enough to include a change in the name consequent on the amalgamation or arrangement. Similar view was taken by this Court in C.P.Nos.133 to 135 of 2006 dated 19.08.2006 in the matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 391 of the Companies Act and approved by the majority of the shareholders, I do not find that there exists any necessity to have a repeated compliance of the same in terms of Section 21 of the Companies Act, as amended as Section 13 of the 2013 Act. 23. In the above circumstance, I do not find any impediment in approving the Scheme of Amalgamation. Consequently, following the decisions cited supra, there shall be an order approving to the Scheme of Amalgamation of the Transferor company viz., M/s.Michelin India Private Limited, the petitioner in C.P.No.391 of 2014, with the Transferee Company, viz., M/s.Michelin India TamilNadu Tyres Private Limited, petitioner in C.P.No.392 of 2014, as provided in Annexure Nos. 4 and 5 respectively in these Company Petitions, with effect from1st April 2014, as the procedure laid down under Sections 391 and 394 of the Companies Act are duly complied with. These Company Petitions are allowed. 24. Taking note of the report by the Chartered Accountant as enclosed by the Official Liquidator, in terms of the order passed by this Court, the Transferor Company shall stand dissolved without winding up. 25. The learned Additional Central Government St ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
