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Where directors are sought to be proceeded against criminally for their act as director by the creditor pending the consideration of a scheme of arrangement, the criminal proceeding can be stayed for the limited purpose so that the directors are not pressurized by the creditors and the scheme can be considered effectively.

WHEN COURT CAN PROCEED TO GIVE EFFECT TO SCHEME The court held that the amalgamation scheme has been approved by the majority of the shareholders of both the companies, the exchange ratio has been fixed by a reputed firm of Chartered Accountants and accepted by the share holders, the statutory formalities have been complied with, the scheme is fair and reasonable and there is no fraud involved, then the court would proceed to give effect to the decision of the majority of the share holders of the company. The Mo A of the company contains power to amalgamate. The affidavit is signed and sworn in prescribed manner by the deponent under Code of Civil Procedure, 1908. Send a copy of application made to the court to the concerned Regional Director, Department of Company Affairs (section 394A). The High Court should give the directions in respect of the matter set out in Rule 69 of Companies Court Rules, with respect to meeting including fixation of time, place and quorum of such meeting, appointment of chairman, etc. Notice of general meeting should be sent to members setting forth the terms of compromise or arrangement and their effect, interest of directors, managing director or manager of the company and effect of those interested on the amalgamation. 36 of Companies Court Rule] shall be sent to the members at least 21 clear days before meeting [ Rule 74 of Companies Court Rules ]. Where notice is sent by an advertisement , he same should be in the form no.

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POWER TO COMPROMISE OR TO MAKE ARRANGEMENTS WITH THE CREDITORS AND MEMBERS.

Where application section 391(1) is considered, The Calcutta High Court has held that no notice to Central Government is necessary.

Not losing sight of this opportunity coming way of the Chartered Accountants, the seminar on this very topic, assumes greater significance and it is imperative that professionals like Chartered Accountants should keep themselves informed of the provisions relating to merger and amalgamations.

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.

The court having jurisdiction is the court at the place where the unregistered company reside and has its principal place of business.

A Foreign company which is an unregistered company is a ‘company’ under this section .

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.

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.

CREDITOR’S RESOLUTIION – NECESSARY The creditors have to pass requisite resolution for a scheme on arrangement or compromise with them.

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