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The Act and the relevant rules pertaining to amalgamation are to be followed scrupulously.The provisions of the Act also deal with compromise or arrangement within or without amalgamation or merger.

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.

Where Company fails to make the application, a creditor or contributor may make the application.

CHAIRMAN’S REPORT While, sectioning the scheme of arrangement or compromise, the court may issue directions or make modification in the scheme as may be thought appropriate for proper working of scheme.

The court must be satisfied that statutory majority are acting in bona fide manner and that any intelligent and honest man belonged to the class would approve the scheme.

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

The powers may be exercised by the courts for the purpose of proper working of the scheme. The effect of those interested should be indicated stating if and how far the same are different from the like interest of other persons. ALL ER It was held in this case that Where that matters involved are of considerable difficulty and doubt, it becomes the duty of the court to examine and scrutinize the content of notice or circular sent to the members and creditors who are parties to the scheme to make sure that the notice is sent contained appropriate disclosures under section 393(1) (a). CLOTNESS IRON COMPANY 1951 SC 476 It was held in this case that a statement made in general “Directors have no interest in the scheme other than as members along with other members” is not a sufficient compliance under the provisions.

Not only this, including any modification in the scheme, with only objective to ensure proper working of compromise or arrangement. Such explanation must be mentioned in the notice being advertised indicating therein that the explanations are available at the Company’s office. : PROVISIONS FOR FACILITATING RECONSTRUCTION AND AMALGAMATION OF COMPANIES. It appeared to the court that the scheme was by way of, what is known as commercial world as a reverse takeover which means that a profit making company merges itself into a loss making company for the purpose of having advantage for tax purpose of examining that the scheme is not that reason against public interest and for evasion of taxes.

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

The court can order an amalgamation of the Indian undertaking of a foreign company with an Indian Company.

If the creditor wrongfully refuses to agree on the scheme, the Court cannot sanction the scheme or probe into the mala fide refusal of creditors to refuse the approval of the scheme.