Court order sanctioning a scheme of amalgamation or demerger is an instrument and conveyance liable to stamp duty

Emami Biotech Ltd. and others Vs. State of West Bengal – Calcutta High Court [Company Application No. 777 of 2011]

The Court held that an order sanctioning a scheme under section 394 of the Companies Act falls within the description of the words ‘instrument’ and `conveyance’ within the meaning of the West Bengal Stamp Act, 1964. Accordingly, it is subject to stamp duty. The Court also observed that no property transferred pursuant to any scheme in the State of West Bengal would be effective unless appropriate stamp duty is paid. This ruling may be relevant in the States which do not have a specific clause for merger/ demerger under sections 391-394 of the Companies Act, 1956 in the conveyance entry in the Stamp duty schedule.

Full text of the Judgement is as follows:-

COMPANY APPLICATION NO. 777 OF 2011

IN THE HIGH COURT AT CALCUTTA

ORIGINAL JURISDICTION

In the matter of:

EMAMI BIOTECH LIMITED & Anr

Before:

The Hon’ble Justice I.P.MUKERJI

Date: 21st September,20 11

Appearance;

Ms. A.K.Mishra, Advocate

The Court:- A separate meeting of the holders of the Equity shares in EMAMI BIOTECH LIMITED (hereinafter referred to as the Transferee Company) shall be convened and held at R.No. 19, 4, K. S. Roy Road, Kolkata -700001 at 2.00 P.M. on 8th November,2011 for the purpose of considering and if thought fit, approving with or without modification, a Scheme of Amalgamation between the Applicant Companies and their respective shareholders for the purpose of amalgamation of the Transferor Companies with the Transferee Company.

A separate meeting of the holders of the Equity Shares in ORIENTAL SALES AGENCIES (INDIA) PRIVATE LIMITED (hereinafter referred to as the Transferor Company) shall be convened and held at R.No. 19, 4, K. S. Roy Road, Kolkata -700001 at 2.15 P.M. on 8th November,201 1 for the purpose of considering and if thought fit, approving with or without modification, a Scheme of Amalgamation between the Applicant Companies and their respective shareholders for the purpose of amalgamation of the Transferor Company with the Transferee Company.

At least twenty-one clear days before the meetings to be held as aforesaid, a notice convening the said meetings at the place and time as aforesaid together with a copy of the said Scheme of Amalgamation, a copy of the statement required to be sent under section 393 of the Companies Act, 1956 and the prescribed form of proxy be served by Pre Paid Post or by hand delivery to each of the Equity Shareholders of the Applicant Companies concerned at their respective last known addresses.

In addition, at least twenty-one days before the day appointed for the meetings, an advertisement convening the same and stating that copies of the said Scheme of Amalgamation and the statement required to be furnished pursuant to the section 393 of the Companies Act, 1956 and the forms of proxy can be obtained free of charge at the Registered office of the Applicant Companies or at the office of their Advocates, be inserted once in “Business Standard” Calcutta Edition and once in “Dainik Statesman”. Publication of the notice of the meetings in the Calcutta Gazette is dispensed with. That the advocates for the Transferee Company do within seven days from this day file in Court the form of the notice and the same shall be settled by the Assistant Registrar (Company) of the Court.

Mr. Suman Saha, Bar Association Room No.17, Advocate, and failing which Mr. Mrityunjoy Chatterjee, Bar Association Room No.17, Advocate, shall be the Chairperson of the said meeting of the Equity Shareholders of the Transferee Company to be held as aforesaid at a remuneration of 600 GMs, for such meeting.

Mr. Mrityunjay Chatterjee, Bar Association Room No.17, Advocate, and failing which Mr. Suman Saha, Bar Association Room No.17, Advocate, shall be the Chairperson of the said meeting of the Equity Shareholders of the Transferor Company to be held as aforesaid at a remuneration of 600 GMs, for such meeting.

The quorum for the said meetings for the Transferor company shall be 2 ( Two) persons either personally or by proxy and for the Transferee Company shall be 5 (Five) persons respectively either personally or by proxy.

Voting by proxy be permitted, provided that a proxy in the prescribed form duly signed by the person(s) entitled to attend and vote at the meeting, is filed with the Applicant Companies at their respective registered office not later than forty eight hours before the meetings. The Chairpersons shall have the power to adjourn the meeting, if necessary.

The value of each share shall be in accordance with the books of the Applicant Companies and where entries in the books are disputed, the respective chairpersons shall determine the value for the purpose of meetings.

The Chairpersons do report to this Court the results of the said meetings within two weeks from the date of the conclusion of the meetings and their reports shall be verified by their respective affidavits.

Let the summons be signed as of date C.A. No. 777 of 2011 is disposed of.

The Chairpersons and all parties concerned are to act on a signed photocopy of this order on the usual undertaking.

(I.P.MUKERJI, J.)

 

 

 

 

The Chairpersons do report to this Court the results of the said meetings within two weeks from the date of the conclusion of the meetings and their reports shall be verified by their respective affidavits.

Let the summons be signed as of date C.A. No. 777 of 2011 is disposed of.

The Chairpersons and all parties concerned are to act on a signed photocopy of this order on the usual undertaking.

(I.P.MUKERJI, J.)

SP/