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Shivalik Motors Limited Vs. Bharat Motors Limited - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtOrissa High Court
Decided On
Case NumberCOPET No. 14 of 2006
Judge
Reported in102(2006)CLT762; [2008]143CompCas462(Orissa)
ActsCompanies Act, 1956 - Sections 391, 394 and 394A
AppellantShivalik Motors Limited
RespondentBharat Motors Limited
Advocates: D.K. Ray,; P.K. Mohanty and; S. Behera, Advs.
Cases ReferredVasant Investment Corporation Ltd. v. Official Liquidator
Excerpt:
.....scheme of amalgamation and directed to serve a copy of petition as per section 394a of act on regional director - regional director made objection regarding sheme of amalgamation of company under section 394a of act on ground that authorized share capital of company can be increased only after complying with relevant provisions of act - petitioner raised maintainability of objection - held, as per settled principle of law in case of vasant investment corporation ltd. v. official liquidator, colaba land and mills co. ltd that whole purpose of section 391 is to reconstitute company without company being required to make number of applications under act for various alterations which may be required in its memorandum and articles of association for functioning as reconstituted company..........directed to serve a copy of the petition as per section 394a of the companies act, 1956 on the regional director, department of company affairs, central government, which is a necessary party, for obtaining the opinion of the regional director and the official liquidator was also asked to submit a report before this court by the aforesaid date. on 19.5.2006, when the matter was taken up, the registrar of companies representing the regional director produced a copy of the letter of the regional director wherein, objections were raised to paragraph-10 of the scheme of amalgamation. the official liquidator has also submitted his report.3. mr. o.k. ray, learned counsel for the petitioner submitted that the objection raised by the regional director is not tenable. objection as made by the.....
Judgment:

M.M. Das, J.

1. In this application under Sections 391 and 394 of the Companies Act, 1956, a sanction of the scheme of arrangement for amalgamation has been sought for.

2. By order dated 21.4.2006, after hearing the company petition, this Court directed to advertise the petition in the newspapers, i.e., 'The New Indian Express' and 'The Samaja', fourteen days before 12.5.2006 to which date, the case was fixed. It was further directed to serve a copy of the petition as per Section 394A of the Companies Act, 1956 on the Regional Director, Department of Company Affairs, Central Government, which is a necessary party, for obtaining the opinion of the Regional Director and the Official Liquidator was also asked to submit a report before this Court by the aforesaid date. On 19.5.2006, when the matter was taken up, the Registrar of Companies representing the Regional Director produced a copy of the letter of the Regional Director wherein, objections were raised to paragraph-10 of the scheme of amalgamation. The Official Liquidator has also submitted his report.

3. Mr. O.K. Ray, learned Counsel for the petitioner submitted that the objection raised by the Regional Director is not tenable. Objection as made by the Regional Director in paragraph-1.1 of his letter-dated 10.5.2005 is as follows:

It is submitted that the authorized share capital of a company can be increased only after complying with the relevant provisions of the Companies Act, 1956 and payment of fees to the Registrar of Companies and stamp duty to the State Government. It is, therefore, submitted that the aforesaid clause may not be allowed by the Hon'ble Court.

4. Mr. Ray relying upon the decisions in the case of Hotline Hol Celdings Pvt. Ltd. and Ors. 112 (2004) Delhi Law Times, 627 and the decision of the Allahabad High Court in the case of Juggilal Kamlapat Holding Ltd. J.K. Investment Ltd. And Kanpur Investments Ltd. decided on 22,8.2005 'submits that the objection of the Regional Director to the effect that the authorized share capital of the transferee ~ company having been increased to Rs. 3,05,00000/- (three crores and five lakhs) , the same cannot be permitted without complying with-the relevant provisions of the Companies Act, 1956 and payment of fees to the Registrar of Companies and stamp duty, is not acceptable, as both the transferor company and the transferee company have paid the prescribed fees of their respective authorized share capitals and by virtue of amalgamation, the increase has occurred as share holders have been combined. Thus, no further fee or stamp duty is payable.

5. The Delhi High Court has held in the case of Telesound India Ltd. (1983) 53 Company Cases, 926 that amalgamation of a company with another or an amalgamation of two companies to form a third is brought about by two parallel schemes of arrangements entered into between one company and its members and the other company and its members and the two separate arrangements bind all the members of the companies and the companies, when sanctioned by the Court. Amalgamation is, therefore, an absorption of one company into another or merger of both to form a third, which is not a mere act of the two companies or their members but is brought about by virtue of a statutory instrument and to that extent has statutory genesis and character, and to that extent, it is distinguishable from a mere bilateral arrangement to merge or join in a common endeavour, an undertaking or enterprise.

6. The Allahabad High Court in the case of Juggilal Kamlapat Holding Ltd. (supra) has categorically negatived a similar objection of the Regional Director by relying upon several decisions of the Bombay High Court. The Bombay High Court in the case of Vasant Investment Corporation Ltd. v. Official Liquidator, Colaba Land and Mills Co. Ltd. (1981) 51 Comp. Cas 20, has held as follows:

The whole purpose of Section 391 is to reconstitute the company without the company being required to make a number of applications under the Companies Act for various alterations which may be required in its Memorandum and articles of association for functioning as a reconstituted company under the scheme (vide Maneckchowk and Ahmedabad ., In re (1970) 2 Comp.LJ 300 (Guj) : (1970) 40 Comp. Cas 818 (Guj). The company is, therefore, not required to make a separate application under the Companies Act for alternation of its memorandum of association to show the new share capital. Such an alteration can be sanctioned under the scheme itself.

7. Similar view has been taken by the Bombay High Court in the case of PMP Auto Industries Ltd., In re (1995) 5 Comp.LJ (Bom) : (1994) 80 Comp. Cas 289 (Bom) (at pages 295, 296) and by the Gujarat High Court in Manechchowk and Ahmedabad ., In re (1970) 2 Comp.LJ 300 (Guj): (1970) 40 Comp.Cas 819 (Guj) (at page 854). On considering the above decided cases, I find no reason to differ with the objection raised by the Regional Director in his letter under reference.

8. In view of 'the above legal position, the objection of the Regional Director is not tenable and the COPET No. 14 of 2006 is consequently allowed. The scheme of amalgamation stands confirmed by this Court. The scheme of amalgamation along with the schedules filed by the petitioner forms a part of this order. The transferor company shall stand dissolved without any order of winding up to be made by the Court and the assets and liabilities as per the schedule shall stand transferred to the transferee company with effect from the appointed date given in the scheme.

9. The transferor company shall, within thirty days from today, cause a certified copy of this order to be delivered to the Registrar of Companies for registration and the transferor company shall stand dissolved as directed above from the date of delivery of the certified copy of this order to the Registrar of Companies

10. The schedules filed by the petitioner shall form a part of this order.

11. Any person interested shall be at liberty to apply this Court in the above matter for any direction that may be necessary. This Copet is accordingly disposed of.

Schedule of Assets & Liabilities

Shivalik Motors Limited, the Transferor Company to be vested in the Transferee Company i.e., Bharat Motors Limited as on 31.03.2005

Part-I

A) Short Description of the properties of Shivalik Motors Limited, the Transferor Company as on 31.03.2005

--------------------------------------------------------------------------------SI. Description Gross Block as on Depreciation as on Net Block as on No. 31.03.2005 (in Rs.) 31.03.2005 (in Rs.) 31.03.2005 (in Rs.)--------------------------------------------------------------------------------1. Land 1,330,325.00 0.00 1,330,325.002. Office Equipment 303,955.00 4,555.35 299,399.653. Furniture & Fixture 461,488.00 6,255.47 455,232.534. Computer & Accessorie 381,435.00 16,789.97 364,645.03 5. Tools & Equipments 1,571,174.00 25,686.03 1,545,487.97 6. Electrical Equipments 32,129.00 69.50 32,059.507. Workshop Building 375,902.00 343.98 375,558.028. Vehicles 3,374,991.00 49,924.90 3,325,066.10--------------------------------------------------------------------------------Total 7,831,399.00 103,625.20 7,727,773.80--------------------------------------------------------------------------------B) Short Description of the properties of Bharat Motors Limited, the Transferee Company as on 31.03.2005

--------------------------------------------------------------------------------SI. Description Gross Block Depreciation Net BlockNo. (in Rs.) (in Rs.) (in Rs.)--------------------------------------------------------------------------------1. Land 2,136,505.25 0.00 2,136,505.252. Building 20,015,055.71 6,795,891.71 13,219,164.003. Plant & Machinery 1,923,762.12 961,794.12 961,968.004. Tools & Equipments 482,183.35 339,385.35 142,798.005. Generator Set 488,555.00 188,379.00 300,176.006. Furniture & Fixture 2,236,093.58 1,254,610.58 981,483.007. Office Vehicle 1,865,451.48 1,458,677.48 406,774.008. Electronic Equipments 503,561.00 285,282.00 218,279.009. Air Conditioner 938,958.00 409,211.00 529,747.0010. Type Writer 1,153.00 858.00 295.0011. Bi-cycle 9,565.00 5,738.00 3,827.0012. Computer 938,377.00 815,985.00 122,392.0013. Workshop Equipment 99,878.30 39,385.30 60,493.0014. Electrical Equipments 782,046.59 400,846.59 381,200.0015. Television 49,190.00 16,949.00 32,241.0016. Trucks 18,674,274.90 1,377,204.90 17,297,070.00--------------------------------------------------------------------------------Total 51,144,610.28 14,350,198.03 36,794,412.25Part-II

A) Short description of the Shareholdings, Debentures, current assets, current liabilities and other items of Shivalik Motors Limited, the Transferor Company as on 31.03.2005:

--------------------------------------------------------------------------------Description As on 31.03.2005 (in Rs.)--------------------------------------------------------------------------------Authorised Share Capital 10,000,000.00Issued, Subscribed & Paid-up Capital 500,000.00Reserve & Surplus 550,976.89Secured Loans 1,456,172.00Unsecured Loans 25,760,543.35Inventories 22,180,421.21Sundry Debtors 16,424,482.02Cash-in-hand 221,711.21Cash at Bank 46,231.00Security Deposits 778,997.00Other Advances 7,473,204.39Current Liabilities 12,318,088.80Provisions 17,772.00Miscellaneous Expenditure 127,600.00--------------------------------------------------------------------------------B) Short description of the Shareholdings, Debentures, current assets, current liabilities and other items of Bharat Motors Limited, the Transferee Company as on 31.03.2005:

--------------------------------------------------------------------------------Description As on 31.03.2005 (in Rs.)--------------------------------------------------------------------------------Authorised Share Capital 17,500,000. 00Issued, Susbcribed & Paid-up Capital 16,676,000.00Reserve & Surplus 19,735,991.84Secured Loans 42,000,865.86Deffered Tax Liabilities 340,504.00Stock-in-Trade 17,340,354.00Sundry Debtors 3,108,022.48Cash-in-hand 2,400,393.06Cash at Bank 441,159.62Security Deposits 1,195,950.00Other Advances 17,706,395.26Current Liabilities 3,264,966.29Provisions 0.00Miscellaneous Expenditure 7,230.31--------------------------------------------------------------------------------Part-III

A) Consolidated Statements of the properties of M/s. Bharat Motors Limited, the Transferee Company after amalgamation i.e., as on 01.04.2005 (in Rs.)

--------------------------------------------------------------------------------SI. Description Net Block of Net Block of Net Block ofNo. ShivalikMotors Bharat Motors Bharat Motorson 31.03.2005 on 31.03.2005 on 1-04-2005--------------------------------------------------------------------------------1. Land 1,330,325.00 2,136,505.25 3,466,830.252. Building 375,558.02 13,219,164.00 13,594,722.023. Plant & Machinery 0.00 961,968.00 961,968.004. Tools & Equipments 1,545,487.97 142,798.00 1,688,285.975. Generator Set 0.00 300,176.00 300,176.006. Furniture & Fixture 455,232.53 981,483.00 1,436,715.537. Office Vehicle 3,325,066.10 406,774.00 3,731,840.108. Electronic Equipments 0.00 218,279.00 218,279.009. Air Conditioner 0.00 529,747.00 529,747.0010. Type Writer 0.00 295.00 295.0011. Bi-cycle 0.00 3,827.00 3,827.00 12. Computer 364,645.03 122,392.00 487,037.0313. Workshop Equipment 0.00 60,493.00 60,493.0014. Electrical Equipments 32,059.50 381,200.00 413,259.50 15. Television 0.00 32,241.00 32,241.0016. Trucks 0.00 17,297,070.00 17,297,070.0017. Office Equipment 299,399.65 0.00 299,399.65--------------------------------------------------------------------------------Total 7,727,773.80 36,794,412.25 44,522,186.05Part-III

B) Consolidated Statements of the Shareholdings, Debentures, Stocks, Investments,, Current Assets, Current Liabilities and other items of M/s. Bharat Motors Limited, the Transferee Company, after amalgamation as on 01.04.2005:

--------------------------------------------------------------------------------Description SHIVALIK MOTORS BHARAT MOTORS BML, afteron 31.03.2005 on 31.03.2005 Amalgamation,on 01.04.2005--------------------------------------------------------------------------------Authorised Share Capital 10,000,000.00 17,500,000.00 27,500,000.00Issued, Subscribed &Paid-up; Capital 500,000.00 16,676,000.00 16,926,000.00Reserve & Surplus 550,976.89 19,735,991.84 20,286,968.73Secured Loans 1,456,172.00 42,000,865.86 43,457,037.86Unsecured Loans 25,760,543.35 0.00 25,760,543.35Deferred Tax Liabilities 0.00 340,504.00 340,504.00Inventories 22,180,421.21 17,340,354.00 39,520,775.21Sundry Debtors 16,424,482.02 3,108,022.48 19,532,504.50Cash-in-hand 221,711.21 2,400,393.06 2,622,104.27Cash at Bank 46,231.00 441,159.62 487,390.62Security Deposits 778,997.00 1,195,950.00 1,974,947.00Other Advances 7,473,204.39 17,706,395.26 25,179,599.65Cuttent Liabilities 12,318,088.80 3,264,966.29 15,583,055.09Provisions 17,772.00 0.00 17,772.00Miscellaneous Expenditure 127,600.00 7,230.31 134,830.31--------------------------------------------------------------------------------SHIVALIK MOTORS LIMITED,

212A, SECTOR-A, ZONE-B,

MANCHESWAR INDUSTRIAL ESTATE BHUBANESWAR-751010

DETAILS OF LAND AS ON 31.03.2005--------------------------------------------------------------------------------Particulars Gross Block Net BlockAddition during Total as onthe year 31.03.2005--------------------------------------------------------------------------------Land at Keonjhar 1,330,325.00 1,330,325.00 1,330,325.00Khata No. 127 & 166Plot No. 1006 Area A. 0.24 Dec.Plot No. 1007 Area A 0.24 Dec.Plot No. 1008 Area A 0.61 Dec.Plot No. 1009 Area A 0.47 Dec.Plot No. 1010 Area A 1.28 Dec.Total Area : A 2.84 Decs.--------------------------------------------------------------------------------Total 1,330,325.00 1330,325.00 1330,325.00--------------------------------------------------------------------------------


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