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The next step is to make an application U/s-39(1) to the High Court having
jurisdiction over the Registered Office of the Company. The transferor and
the transferee company should make separate applications to the High
Court. The application shall be made by a Judge’s Summons in Form No-33
supported by an affidavit in Form No-34 (See Rule-82 of the Companies
(Court) Rules, 1959). The following documents should be submitted with the
Judge’s Summons :-
a) A true copy of the Company’s Memorandum and Articles ;
b) A true copy of the Company’s latest audited balance sheet ;
c) A copy of the Board Resolution, which authorizes the Director to make the
application to the High Court.
Once the notice has been signed by the Chairman of the forthcoming
meeting as aforesaid it could be dispatched to the members under
Certificate of posting at least 21 days before the date of meeting (Rule 73 of
Companies (Court) Rules, 1959).
Within seven days from the date on which the Chairman has submitted his
report about the result of the meeting to the Court, both the companies
should make a joint petition to the High Court for approving the scheme of
amalgamation. This petition is to be made in Form No-40 of Companies
(Court) Rules. The court will fix a date of hearing of the petition. The notice
of the hearing should be advertised in the same papers in which the notice of
the meeting was advertised or in such other newspapers as the court may
direct, not less than 10 days before the date fixed for the hearing
(Rule-80 of Companies (Court) Rules).
Section 391
Amendment in the Companies Act, 1956 in year 2002 gave powers to
National Company Law Tribunal to review and to allow any compromise or
arrangement, which is proposed between a company and its creditors or any
class of them or between a company and its members or any class of them.
However, because of non formation of National Company Law Tribunal, these
powers still lie with High Courts and the parties concerned can make
applications to High Courts.
If the Creditors, Members present at a General meeting representing three
fourth of total number agree to any compromise or arrangement, it becomes
binding on the rest of the members or creditors provided the tribunal
sanctions the compromise or arrangement.
The order made by Tribunal will come in to effect only after the filing of
certified copy with the Registrar of Companies.
Court’s power under the section are very wide and has discretion to allow
any sort of arrangement between the company and members.
Section 392:
Under this section, the court has power to supervise the carrying out of
the compromise or an arrangement; and
may, at the time of making such order or at any time thereafter, give
such directions in regard to any matter or make such modifications in
the compromise or arrangement as it may consider necessary for the
proper working of the arrangement.
Section 393:
This section prescribes the procedure required for convening the
meeting of the members or creditors called under section 391.
The notice for the meeting should be sent along with a statement
setting forth the terms of the compromise and or arrangement and
explaining its effect and in particular, the statement must state all
material interest of the directors, managing directors of the company,
whether in their capacity as such or as members or creditors of the
company or otherwise.
Any default in complying with the requirements under this section may
lead to a fine of Rs. 50, 000 against the concerned official of the
company, who is found guilty.
Section 394:
• that under the scheme the whole or any part of the undertaking
property or liabilities of any concerned company is to be transferred to
another company;
the court may make provision for all or any of the following matters.