Sanjib Banerjee, J. - (1.) THE petitioners have applied for sanction of a scheme of amalgamation that has been approved by the shareholders of the concerned companies. The petitioners suggest that the transferor and the transferee companies are carrying on business of the same nature and it would be convenient for the businesses to be combined for smooth and efficient management and for proper utilisation of resources.
(2.) THE petition has been advertised as is the usual practice and as required by the Companies Act, 1956, the Central Government has been served. An affidavit has been filed by the Regional Director, Eastern Region, Ministry of Corporate Affairs on behalf of the Central Government. The material paragraph in the Regional Director's affidavit reads as follows: 2. That it is submitted that on examination of the petition in detail and report of the Registrar of Companies, West Bengal, it appears that there is no complaint and representation received against the proposed scheme of amalgamation. The Central Government has, therefore decided, that the petition/application need not be opposed and the matter be decided by the hon'ble court on its merits. No one else has appeared to oppose the petition. It appears from the proposed scheme that there have been inter se transfers of shares to the companies involved. Clause 13(a) of Part II of the proposed scheme records that the shares of the external shareholders of the four transferor companies have been purchased by the transferee company which has resulted in the four transferor companies becoming wholly own subsidiaries of the transferee company. Clauses 13(a) and 13(b) of Part II of the scheme provide as follows: 13(a). -Even though the shares of external shareholders of MAIPL, MMPL, MSPL, RIPL have been purchased by transferee company resulting in transferor companies becoming 100 per cent. subsidiaries of the transferee company after March 31, 2006, the scheme of merger provides for such subsequent changes in the shareholding pattern of transferee companies. The amount due to the external shareholders aggregating Rs. 20,02,400 as detailed in paragraph (e) below, have been shown as a current liability in the post merger balance -sheet of GfK Mode. 13(b). -Upon this scheme becoming operative, the difference of the amount paid for acquisition of shares of transferor companies and book value of assets taken over being Rs. 29,00,000 have been debited to reserves to the extent the balance available, i.e., Rs. 11,24,945 and remaining amount, i.e., Rs. 17,75,055 has been adjusted against the profit and loss account in the books of GfK Mode.
(3.) CLAUSE 13 (d) of Part II of the scheme provides for payment being made by the transferee company to external shareholders of the transferor companies from whom the shares of the transferor companies have been purchased. It appears that the word "external" has been used to imply shareholders other than those belonging to the group which is in management of all the five petitioning companies in these proceedings. In the chart set out under Clause 13 (d) of Part II of the scheme, the shares of three of the transferor companies have been shown to have been acquired by the transferee company at face value adding up to Rs. 2,200. The 670 shares held by the external shareholders of Mode Services P. Ltd. (MSPL) of face value of Rs. 100 each is shown to be acquired at Rs. 20,00,200. There is no explanation as to the skewed consideration for the acquisition of MSPL shares by the transferee company, nor any attempt to justify such price. All the companies involved are private companies and their shares are not quoted.;