Thantiyadi Realtors Private Limited vs Somasimara Realtors Private Limited

Vinod K. Sharma, J.—These Company Petitions are filed by Transferor Company and Transferee Company to sanction the Scheme of

amalgamation so as to be binding on all the Equity Shareholders and creditors of the transferee Company, and to dissolve the transferor company

without the process of winding up.

The Petitioner, M/s. Thantiyadi Realtors Private Limited in C.P. No. 327 of 2010 is the Transferor Company, and in C.P. No. 328 of 2010, the

Petitioner, M/s. Somasimara Realtors Private Limited is the Transferee Company.

M/s. Thantiyadi Realtors Private Limited was incorporated on 29.03.2007 with its registered office at No. 21, II Main Road, Gandhi Nagar,

Chennai. Whereas, the transferee company M/s. Somasimara Realtors Private Limited, was incorporated on 03.01.2007 with its registered office

at No. 21, II Main Road, Gandhi Nagar, Chennai.

The authorized share of both the companies and the object of amalgamation as well as Transferee Company are set out in the scheme of

amalgamation.

The scheme of amalgamation complies with the provisions of Section 2(19AA) of the Income Tax Act, 1961. As per the scheme, the entire

undertaking and the assets and liabilities of the Transferor company is to be taken over by the Transferee company, as set out in the scheme of

amalgamation.

All the shareholders of Transferor and Transferee companies have given consent affidavit, consenting to the scheme of amalgamation.

There is only one debenture holder of transferor company, who has also given affidavit in writing, consenting to the scheme of amalgamation.

This Court, vide order dated 30.11.2010, passed in C.A.1800 of 2010, was pleased to dispense with the convening, holding and conducting of

meeting of the equity shareholders of Transferor and Transferee companies for considering and if thought fit, approving with or without modifying

the scheme of amalgamation of transferor company with the transferee company.

The Transferee company has taken over the liability of the Transferor company, thus, the interest of secured creditors is not likely to be

prejudiced.

In pursuance to the notice, the Regional Director, Ministry of Corporate Affairs, Chennai submitted her report as under:

I, K. Pandian, S/o. Shri S. Krishnan, Indian, Hindu, aged about 58 years having my office at Shastri Bhavan, Vth Floor, 26, Haddows Road,

Chennai 600 006, do hereby solemnly affirm and sincerely state as follows:

I am the Regional Director, Southern Region, Ministry of Corporate Affairs, Chennai and I am authorized to file this affidavit on behalf of the

Central Government for due consideration of this Hon''ble Court.

I respectfully submit that the Regional Director, Southern Region, Ministry of Corporate Affairs, Chennai, had been served with copy of the

petitions pursuant to Section 394A of the Companies Act, 1956 in C.P. No. 327 and 328 of 2010 and the same have been examined in detail.

I submit that the Transferor company and the Transferee Company have their registered offices at Chennai within the jurisdiction of this Hon''ble

Court.

I further submit that it is stated in Part C, para 7.1 of the petition, upon the scheme being sanctioned by the Court, Authorised capital of the

transferor company shall stand transferred to and added to the authorized share capital of the transferee company. The transferee company is

required to file Form No. 5 with the registration fees by complying with the provisions of Section 94 & 97 of the Act.

I further submit that para 12.1 of the scheme protects the interest of all employees of the Transferor company and para 18 of the scheme

provides for dissolution of the transferor company, upon amalgamation.

The objection raised by the Regional Director cannot come in way of amalgamation in view the judgment of this Court in the case of The

Regional Director, Ministry of Company Affairs and The Registrar of Companies Vs. Cavin Plastics and Chemicals (P) Ltd., wherein, this Court

held as under:

Held, dismissing the appeal, that the issue was not whether the fee which was already paid by the transferor company would automatically be

transferred to the transferee company. But, what was intended by Section 391 was to reconstitute the company without the company being

required to make a number of applications under the Companies Act for various alternations which might be required in its memorandum and the

articles of association for functioning as a reconstituted company under the scheme. Not only is Section 391 a complete code in itself, but it is

intended to be in the nature of a ""single window clearance"". Therefore, no separate fees need be paid to the Registrar.

There is no objection to the sanctioning of the scheme from the creditors or shareholders. After going through the scheme of amalgamation, this

Court does not find any objectionable features, in sanctioning the scheme. Accordingly, the scheme of amalgamation is sanctioned.

The company petitions are, accordingly, ordered.

The remuneration to the Additional Central Government standing Counsel is fixed at Rs. 2,500/-for each petition, to be paid by the Petitioner

companies.