JUDGMENT S.P. Mehrotra, J.
1. The aforesaid application has been filed jointly on behalf of the Transferor Company (namely, Kanpur Metal Products Private Limited) and the Transferee Company (namely, Saveena Enterprises Private Limited) under Rule 9 of the Companies (Court) Rules, 1959. It is, interalia, prayed that the Applicants-Companies be permitted to withdraw the aforesaid Company Application No. 19 of 2003.
2. It appears that the aforementioned Company Application No. 19 of 2003 was jointly filed by the Transferor Company and the Transferee Company (hereinafter jointly referred to as "the Applicants-Companies") under Section 391 read with Section 394 of the Companies Act, 1956.
3. It appears that a Scheme of Amalgamation was proposed for the amalgamation of the Transferor Company with the Transferee Company.
4. Copy of the proposed Scheme of Amalgamation was filed as Annexure-VIII to the affidavit accompanying the aforesaid Company Application No. 19 of 2003, and appeared at page. 129 of the Paper Book of the aforesaid Company Application No. 19 of 2003.
5. A perusal of the proposed Scheme of Amalgamation, particularly Clause 1.4 thereof shows that "the appointed date" in respect of the proposed Scheme of Amalgamation was fixed as 1,4.2002.
6. The said Company Application No. 19 of 2003 was filed on 5.8.2003.
7. During the pendency of the aforesea company Application No. 19 of 2003, various applications along with affidavits were filed on behalf of the Applicants-Companies . Last of such applications filed on behalf of the Applicants-Companies was an " application dated 31.8.2004 being Civil Misc. Application No. 159988 of 2004 (Paper No. A-8).
8. The said applications and affidavits filed on behalf of the Applicants-Companies have been noted in detail in the order dated 21.12.2004 passed on the aforesaid Company Application No. 19 of 2003, as mentioned hereinafter.
9. By the order dated 21.12,2004 passed on the aforesaid Company Application No. 19 of 2003, the requirement for holding the meeting of the Shareholders of the Transferor Company for consideration of the proposed Scheme of Amalgamation, as per the requirements of Section 391(1) and (2) read with Section 393 of the Companies Act, 1956, was dispensed with. Similarly, the requirement for holding the, meeting of the Shareholders of the Transferee Company for consideration of the proposed Scheme of Amalgamation, as per the requirements of Section 391(1) and (2) read with Section 393 of the Companies Act, 1956, was dispensed with. Again, by the said order dated 21.12.2004, the requirement for holding the meeting of the Creditors of the Transferor Company for consideration of the proposed Scheme of Amalgamation, as per the requirements of Section 391(1) and (2) read with Section 393 of the Companies Act, 1956, was dispensed with.
10. However, by the said order dated 21.12.2004, directions were given for holding the meeting of the Unsecured Creditors of the Transferee Company for consideration of the proposed Scheme of Amalaamation, as per the requirements of Section 391(1) and (2) read with Section 393 of the Companies Act, 1956. Further, directions were also given for holding the meeting of the Secured Creditors of the Transferee Company for consideration of the proposed Scheme of Amalgamation, as per the requirements of Section 391(1) and (2) read with Section 393 of the Companies Act, 1956, As per the directions given in the said order dated 21.12.2004, the aforesaid meetings were to be held on 26.2.2005 at the respective time and place mentioned in the said order dated 21.12.2004.
11. Subsequncly, it appears that an application being "Civil Misc. (Modification) Application No. 25149 of 2005 (Paper No. A-10) was filed on behalf of the Applicants-Companies. By the order dated 15.2.2005 passed on the said Civil Misc. (Modification) Application No. 25149 of 2005 (Paper No, A-10), the said application was held to be misconceived, and was, accordingly, rejected.
12. However, keeping in view the prayer made by Shri S.K. Mehrotra, learned Counsel for the Applicants-Companies, the order dated 21.12.2.004 was modified to the extent that the date of the aforesaid meetings was changed to 19.3.2005 instead of 26.2.2005, as mentioned in the order dated 21.12.2004. It was further observed that rest of the directions mentioned in the said order dated 21.12.2004 passed on the said Company Application No. 19 of 2003 would continue to remain in operation.
13. Thereafter, it appears that instead of getting the meetings held, as per the directions given in the order dated 21.12.2004 read with the order dated 15.2.2005, the Applicants-Companies filed the aforesaid Civil Misc. Application No. 61254 of 2005 (Paper No. A-11) on 16.3,2005, By the order dated 18.3.2005, the said application was directed to be listed in the month of July, 2005.
14. Pursuant to the said order dated 18.3.2005, the said application (Paper No. A-11) is listed today before the Court for orders.
15. I have heard Shri S.K. Mehrotra, learned Counsel for the Applicants-Companies, and perused the record.
16. It is, interalia, stated in the aforesaid application (Paper No. A-11) that the Board of Directors of the Transferor Company as well as the Transferee Company in their meetings held on 23.2.2005 resolved to withdraw the aforesaid Company Application No. 19 of 2003 In the interest of the Companies due to changes in the business circumstances.
17. The aforesaid application (Paper No. A-11) is accompanied by an affidavit of Saurabh Vaish, stated to be the Director of the Transferor Company (namely, Kanpur Metal Products Private Limited), sworn on 1.3.2005. The aforesaid application (Paper No. A-11) is further accompanied by an affidavit of Saurabh Vaish, stated to be the Managing Director of the Transferee Company (namely, Saveena Enterprises Private Limited), sworn on 1.3.2005.
18. Copy of the aforementioned Resolution passed by the Board of Directors of the Transferor Company on 23.2.2005 has also been filed alongwith the aforesaid application (Paper No. A-11), and appears at page 6 of the Paper Book of the aforesaid application (Paper No. A-11). Again, copy of the aforementioned Resolution passed by the Board of Directors of the Transferee Company on 23.2.2005 has been filed alongwith the aforesaid application (Paper No. A-11), and appears at page 7 of the Paper Book of the aforesaid application (Paper No. A-11).
19. As noted above, during the pendency of the aforesaid Company Application No. 19 of 2003, various applications and affidavits were filed on behalf of the Applicants-Companies, the last one being Civil Misc. Application No. 159988 of 2004 (dated 31.8.2004) (Paper No. A-8).
20. Further, even after the passing of the said order dated 21.12.2004, the aforesaid Civil Misc. (Modification) Application No. 25149 of 2005 (Paper No. A-10) was filed on behalf of the Applicants-Companies on 4.2.2005. The said application (Paper No. A-10) was rejected on 15.2.2005. However, on prayer made by the learned Counsel for the Applicants-Companies, the order dated 21.12.2004 was modified in regard to the date of holding the meetings as per the directions given in the order dated 21.12.2004.
21. It is noteworthy that the applications were continued to be moved on behalf of the Applicants-Companies during the pendency of the aforesaid Company Application No. 19 of 2003 as late as till 31.8.2004. Even after the passing of the said order dated 21.12.2004, the aforesaid Civil Misc. (Modification) Application No. 25149 of 2005 (Paper No. A-10) was filed on behalf of the Applicants-Companies on 4.2.2005. When the said Application (Paper No. A-10) was rejected on 15.2.2005, prayer was made for modification of the date for holding the aforesaid meetings, and, accordingly, the date for holding the aforesaid meetings was changed to 19.3.2005.
22. On 23.2.2005, the respective Board of Directors of the Applicants-Companies allegedly resolved for withdrawing the aforesaid Company Application No. 19 of 2003 due to change in business circumstances.
23. It is not understandable as to why the Applicants-Companies did not take any decision in regard to the withdrawal of the aforesaid Company Application No. 19 of 2003 during the long pendency of the said Company Application and even before the passing of the order dated 21.12.2004. Even after the passing of the said order dated 21.12.2004, the Applicants-Companies continued to pursue the matter and filed the aforesaid Modification Application (Paper No. A-10). When the said Modification Application (Paper No. A-10) was rejected on 15.2.2005, prayer was made on behalf of the Applicants-Companies for change of date for holding the aforesaid meetings, and the said prayer was accepted by the Court, and the date for holding the meetings was fixed as 19.3.2005. The Court cannot appreciate the conduct of the Applicants-Companies.
24. In any case, as the Applicants-Companies have prayed for withdrawal of the aforesaid Company Application No. 19 of 2003, the Court is proceeding to consider the said prayer.
25. The main reason for making the said prayer for withdrawal of the afore mentioned Company Application No. 19 of 2003, as appears from the averments made in the aforesaid application (Paper No. A-11) and its accompanying affidavits, as also from the resolutions passed by the respected Board of Directors of the Transferor Company and the Transferee Company, is that considerable change in the circumstances has taken place since 1.4.2002, which was fixed as the appointed date in the proposed Scheme of Amalgamation (Annexure-VIII to the aforesaid Company Application No. 19 of 2003).
26. Having regard to the averments made in the aforesaid application (Paper No. A-11) and its accompanying affidavits, as also the contents of the said resolutions, each dated 23.2.2005, passed by the Board of Directors of the Transferor Company and the Board of Directors of the Transferee Company, and having considered the submissions made by Shri S.K. Mehrotra, learned Counsel for the Applicants-Companies, the aforesaid Company Application No. 19 of 2003 is dismissed as withdrawn. It is, however, made dear that no liberty is being given to the Applicants-Companies to file fresh Company Application/Company Petition under Sections 391 to 394 of the Companies Act, 1956 on the same cause of action including for sanction of any proposed Scheme of Amalgamation of the Transferor Company with the Transferee Company, the appointed date whereof would be 1.4.2002.
27. Copy of the present order will be sent to the Registrar of Companies, U.P., Kanpur.