Girish Chandra Gupta, J. - (1.) THIS is an application made by Globsyn Technologies Ltd., seeking sanction of the court to a scheme of amalgamation and an order in terms of prayers (g) and (h) which read as follows: (g) The reduction of share capital and utilisation of the securities premium account in terms of the scheme as approved by a special resolution passed by equity shareholders of the petitioner -company in their meeting held on February 23, being annexure F to the petition be confirmed and passed by this hon'ble court; (h) The order sanctioning the scheme of arrangement be deemed to be an order confirming utilisation of the securities premium account within the meaning of section 102 of the Companies Act, 1956; It appears that by an order dated December 24, 2008, this court ordered a meeting of equity shareholders for the purpose of considering and if thought fit with or without modification approve the proposed scheme of amalgamation between the petitioner herein and Synergy Log -in Systems Ltd. The scheme which was directed by the order dated December 24, 2008, to be considered by the shareholders of the aforesaid two companies disclosed the scheme of arrangements to be as follows: The reduction and reorganisation of the share capital of the Synergy Log -in Systems Ltd. ('the transferee company') and demerger of the corporate training division of Globsyn Technologies Ltd. ('the demerged company') into Synergy Log -in Systems Ltd. ('the transferee company') will be effected by a scheme of arrangement under sections 391 to 394 read with sections 78, 100 to 104 of the Companies Act, 1956.
(2.) IT would therefore become clear that the scheme was that there shall be reduction of the share capital of the company known as Synergy Log -in Systems Ltd., the transferee company but surprisingly the prayer is for permission for reduction in the share capital of the transferor company. It appears from annexure F to the petition, an unsigned document, that the following resolutions were adopted by the shareholders of the petitioner -company in an extraordinary general meeting held on February 23, 2009 at 12.45 p.m.: Resolved that pursuant to the provisions of sections 78 to 100 and other applicable provisions of the Companies Act, 1956 and article 3 of the articles of association of the company and subject to the sanction by the hon'ble High Court at Calcutta, of the scheme of arrangement presented to the court under Company Application No. 726 of 2008 for arrangement between Globsyn Technologies Ltd., the demerged company and Globsyn Infotech Ltd. (formally knows as Synergy Log -in Systems Ltd.), the transferee company, the adjustment of capital loss against reconstruction reserve account and the subsequent withdrawal of reconstruction reserve account and set off thereof against share premium account thereby the share premium account shall stand reduced by Rs. 630.14 lakhs.
(3.) THIS meeting at 12.45 p.m. was chaired by one Shri R.C. Bhattacharyay, director of the petitioner -company. It is therefore clear that this resolution intending to reduce share capital of the petitioner -company was not a part of the scheme for which a chairperson was appointed by this court in order to ascertain the views of the shareholders. According to the prayers (g) and (h) quoted above the resolution resolving to reduce the share capital shall form part of the scheme whereas that resolution was not a part of the scheme presented to this court which culminated in an order dated December 24, 2008, passed by brother Sinha J. Prayer (g) is obviously based on the aforesaid unsigned resolution dated February 23, 2009, a copy whereof is annexure F to the petition.;