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Where Company fails to make the application, a creditor or contributor may make the application.

CHAIRMAN’S REPORT While, sectioning the scheme of arrangement or compromise, the court may issue directions or make modification in the scheme as may be thought appropriate for proper working of scheme.

If the creditor wrongfully refuses to agree on the scheme, the Court cannot sanction the scheme or probe into the mala fide refusal of creditors to refuse the approval of the scheme.

MRTP Companies- Amalgamation Where two companies are carrying on the same business, there was no need to file application under section 23 of MRTP Act for amalgamation thereof, although both companies are registered under MRTP Act and requirements under section 23(3) of MRTP Act is fulfilled.

Presently, the High Court enjoys powers of sanctioning amalgamation matters under section 394 of the Act though it is a matter of time when this power will be exercised by National Company Law Tribunal, a forum where Chartered Accountants shall be authorized to appear.

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If not, alter the object clause of memorandum by following the procedure laid down under section 17. The Draft scheme of amalgamation (based on fair exchange ratio) prepared and approved by the Board of Directors. 38 of Companies Court Rules and include the aforesaid statement or a notification of the place at which and the manner in which the members who are entitled to attained the meeting may obtain copies thereof [ Rule 74 of Companies Court Rules ]. If the amalgamation affects the rights of debenture holders, the said statement shall give the like information and explanation as respects the trustees of any deed for securing the debenture as it is required to give as respects the company’s Directors [section393(2)]. Provide a copy of statement free of charge to every creditor or member applying for the same within 24 hours of the requisition made so. Ensuring the chairman appointed by the Court for the meeting of company or any other person files an affidavit at least 7 days before the meeting showing the directions regarding the issue of notice and advertisement have been compiled with [Rules 75 and 76 of Companies Court Rules]. Hold the general meeting and pass the resolution as mentioned below: 1. 23 along with copy of resolution and explanatory statement with filing fee with the Registrar of Companies within 30 days of passing. The Chairman should report the result of the meeting to the court on form no 39 within time fixed by the court or within 7 days of conclusion of meeting. Move the High Court for approval by submitting a petition in Form no.

The powers may be exercised by the courts for the purpose of proper working of the scheme. The effect of those interested should be indicated stating if and how far the same are different from the like interest of other persons. ALL ER It was held in this case that Where that matters involved are of considerable difficulty and doubt, it becomes the duty of the court to examine and scrutinize the content of notice or circular sent to the members and creditors who are parties to the scheme to make sure that the notice is sent contained appropriate disclosures under section 393(1) (a). CLOTNESS IRON COMPANY 1951 SC 476 It was held in this case that a statement made in general “Directors have no interest in the scheme other than as members along with other members” is not a sufficient compliance under the provisions.

Not only this, including any modification in the scheme, with only objective to ensure proper working of compromise or arrangement. Such explanation must be mentioned in the notice being advertised indicating therein that the explanations are available at the Company’s office. : PROVISIONS FOR FACILITATING RECONSTRUCTION AND AMALGAMATION OF COMPANIES. It appeared to the court that the scheme was by way of, what is known as commercial world as a reverse takeover which means that a profit making company merges itself into a loss making company for the purpose of having advantage for tax purpose of examining that the scheme is not that reason against public interest and for evasion of taxes.

It is always preferred to have the valuation of shares by an outside expert to determine the fair exchange value of shares. Apply to High Court for directions to convene the general meeting by way if Judge’s summon y an affidavit. Resolution approving the scheme of amalgamation to be passed by three/fourth majority in value of members, and authorizing the directors to implement the scheme. Resolution for increasing the authorized capital of the company, where necessary by ordinary/special resolution. Send 6 copies of notice and copy of proceedings of the meeting to the concerned stock exchanges as per listing agreements. 40 within 7 days of the filing of the report by the Chairman and ensure compliances under section 394 and 395 in this regard. SHRI VIKRAM COTTON MILLS LTD AIR 1970 SC 1973 It was held that any compromise with creditors under the scheme does not reduce the liability of surety unless the contract of surety provides otherwise. LTD 71 CWN 845 The court has jurisdiction to entertain application under section 391 of the Act in respect of foreign company and a Government Company. (1981) 51COMP (RAJ) It was held by the court that However, the power can be exercised where such modification is considered necessary for proper working of the scheme.

The petition is accompanied by an affidavit in Form no. The High Court should be moved jointly by transferor and transferee companies where registered offices of both the companies are in the same state. A suit by Bank against surety can be stayed till the time the amount recoverable and due from the company is determined. : POWER OF HIGH COURT TO ENFORCR COMPROMISE AND ARRANGMENTS. It was held that the court can make the eviction orders against a person who have prima facie no right, title or interest in the company’s properties by issuing suitable directions. But where the modification makes the compromise or arrangement suitably in variance of original one or where it prejudicially affects any section of the creditors or contributories, the sanction of a fresh meeting will have to be sought.

If not, alter the object clause of memorandum by following the procedure laid down under section 17. The Draft scheme of amalgamation (based on fair exchange ratio) prepared and approved by the Board of Directors. 38 of Companies Court Rules and include the aforesaid statement or a notification of the place at which and the manner in which the members who are entitled to attained the meeting may obtain copies thereof [ Rule 74 of Companies Court Rules ]. If the amalgamation affects the rights of debenture holders, the said statement shall give the like information and explanation as respects the trustees of any deed for securing the debenture as it is required to give as respects the company’s Directors [section393(2)]. Provide a copy of statement free of charge to every creditor or member applying for the same within 24 hours of the requisition made so. Ensuring the chairman appointed by the Court for the meeting of company or any other person files an affidavit at least 7 days before the meeting showing the directions regarding the issue of notice and advertisement have been compiled with [Rules 75 and 76 of Companies Court Rules]. Hold the general meeting and pass the resolution as mentioned below: 1. 23 along with copy of resolution and explanatory statement with filing fee with the Registrar of Companies within 30 days of passing. The Chairman should report the result of the meeting to the court on form no 39 within time fixed by the court or within 7 days of conclusion of meeting. Move the High Court for approval by submitting a petition in Form no.

The powers may be exercised by the courts for the purpose of proper working of the scheme. The effect of those interested should be indicated stating if and how far the same are different from the like interest of other persons. ALL ER It was held in this case that Where that matters involved are of considerable difficulty and doubt, it becomes the duty of the court to examine and scrutinize the content of notice or circular sent to the members and creditors who are parties to the scheme to make sure that the notice is sent contained appropriate disclosures under section 393(1) (a). CLOTNESS IRON COMPANY 1951 SC 476 It was held in this case that a statement made in general “Directors have no interest in the scheme other than as members along with other members” is not a sufficient compliance under the provisions.

Not only this, including any modification in the scheme, with only objective to ensure proper working of compromise or arrangement. Such explanation must be mentioned in the notice being advertised indicating therein that the explanations are available at the Company’s office. : PROVISIONS FOR FACILITATING RECONSTRUCTION AND AMALGAMATION OF COMPANIES. It appeared to the court that the scheme was by way of, what is known as commercial world as a reverse takeover which means that a profit making company merges itself into a loss making company for the purpose of having advantage for tax purpose of examining that the scheme is not that reason against public interest and for evasion of taxes.

It is always preferred to have the valuation of shares by an outside expert to determine the fair exchange value of shares. Apply to High Court for directions to convene the general meeting by way if Judge’s summon y an affidavit. Resolution approving the scheme of amalgamation to be passed by three/fourth majority in value of members, and authorizing the directors to implement the scheme. Resolution for increasing the authorized capital of the company, where necessary by ordinary/special resolution. Send 6 copies of notice and copy of proceedings of the meeting to the concerned stock exchanges as per listing agreements. 40 within 7 days of the filing of the report by the Chairman and ensure compliances under section 394 and 395 in this regard. SHRI VIKRAM COTTON MILLS LTD AIR 1970 SC 1973 It was held that any compromise with creditors under the scheme does not reduce the liability of surety unless the contract of surety provides otherwise. LTD 71 CWN 845 The court has jurisdiction to entertain application under section 391 of the Act in respect of foreign company and a Government Company. (1981) 51COMP (RAJ) It was held by the court that However, the power can be exercised where such modification is considered necessary for proper working of the scheme.

The petition is accompanied by an affidavit in Form no. The High Court should be moved jointly by transferor and transferee companies where registered offices of both the companies are in the same state. A suit by Bank against surety can be stayed till the time the amount recoverable and due from the company is determined. : POWER OF HIGH COURT TO ENFORCR COMPROMISE AND ARRANGMENTS. It was held that the court can make the eviction orders against a person who have prima facie no right, title or interest in the company’s properties by issuing suitable directions. But where the modification makes the compromise or arrangement suitably in variance of original one or where it prejudicially affects any section of the creditors or contributories, the sanction of a fresh meeting will have to be sought.

The role of Chartered Accountants, in any amalgamation case, cannot be undermined as without their uncanny insight within the financial maze, no due diligence, valuation, share exchange ratio etc. Interpretation of Section Meaning of Company The expression ‘company’ includes an unregistered company.