SUMANI PVT LTD Vs. STATEOF MAHARASTRA

JUDGEMENT

(1.) The petitioner herein, Sumani Private Ltd., is the transferor-company seeking amalgamation with Lalitmani Private Ltd., the transferee-company, as per scheme of amalgamation formulated by them, Ex. A to the petition.

(2.) When the matter came up for admission and directions on 20th October, 1978, before Mrs. Sujata Manohar J., it was contended on behalf of the petitioners that under s. 394(1), second proviso, of the Companies Act, 1956, the official liquidator is required to make a report to the court only in respect of company which is being wound up and not in respect of company which is a going concern, and in support of this contention, reliance was placed upon the decision of a single judge of the Calcutta High Court in Marybong & Kyel Tea Estate Ltd., In re [1977] 47 Comp Cas 802 (Cal). In view of this contention, Mrs. Sujata Manohar J. directed that the official liquidator need not make any report under s. 394(1) at this stage. The matter now comes up for consideration on the limited issue as to whether no report is necessary as contended on behalf of the petitioners herein.

(3.) Mr. S. D. Parekh, learned counsel appearing for the petitioners, submitted that the opinion expressed by the Calcutta High Court is correct. On the other hand, Mr. Talyarkhan, learned counsel appearing for the Regional Director of the Company Law Board, Bombay, submitted that the view taken by the Division Bench of the Karnataka High Court in Regional Director, Company Law Board v. Mysore Galvanising Co. Pvt. Ltd. [1976] 46 Comp Cas 639 is the correct view.