Vimal
(CA Final , CS Final)
(23 Points)
Replied 28 December 2009
Dear Lokesh,
Kindly throw some light further to clarify as which section talks about unability of Section 25 companies to merge?
Some relevant findings on similar topic for your reference:
[1] Section 25 has no restrictive clause regarding merger
[2] Even if there is no express power in the memorandum of a company to amalgamate with another company, by virtue of statutory power under section 391, a court can always sanction a scheme of amalgamation if the statutory requirements are complied with. – Marybong & Kyel Tea Estate Ltd., In re [1977] 47 Comp. cas. 802 (Cal.).
[3] For amalgamation it is not necessary that object of companies be in unison. – W. A. Beardsell & Co. (P.) Ltd., In re [1968] 38 Comp. cas. 197 (Mad.).
[4] Court will not sanction a scheme of reconstruction of a company limited by guarantee where members pass scheme without liability of members and company court sanction scheme leaving question of liability to be decided when it arose. – Joseph v. Paily [1958] 28 Comp. Cas. 146 (Ker.).
[5]Clause of MOA to be comply, “Every member of the company undertakes to contribute to the assets of the company in the event of its being wound up while he is a member, or within one year after he ceases to be a member, for payment of debts & liabilities of the company contracted before he ceases to be a member, and the costs, charges & expenses of winding up and for the adjustment of the rights of the contributories among themselves, such amount as may be required, not exceeding …….. rupees.”
[6] Clause of MOA to be comply, “If upon a winding up or dissolution of a company there remains, after the satisfaction of all the debts and liabilities, any property whatsoever, the same shall not be distributed amongst the members of the company but shall be given or transferred to such other company or assosiation or company having object similar to the object of the company to be determined by the members of the company at or before the time of dissolution or in default thereof, by the High Court of Jurisdiction that has or may acquire jurisdiction in the matter."