Summary: Section 233 of the Companies Act, 2013, facilitates the merger or amalgamation of certain companies, specifically small companies or a holding company with its wholly-owned subsidiary. The process begins with the transferor and transferee companies issuing a notice for objections or suggestions, allowing 30 days for responses. The scheme requires approval from at least 90% of the shareholders and the submission of a solvency declaration to the Registrar. Creditors must also approve the scheme, with a minimum of 90% by value participating in the meeting. Following this, the transferee company submits the approved scheme to the Central Government and relevant authorities. If there are no objections, the scheme is registered; otherwise, it may be referred to the Tribunal. Registration leads to the dissolution of the transferor company without winding-up, transferring its assets and liabilities to the transferee. The transferee cannot hold shares in its name post-merger, and must report the revised authorized capital to the Registrar. This section also applies to schemes of compromise or arrangement and provides the Central Government authority to define procedures for mergers.
1. Notwithstanding the provisions of section 230 and section 232, a scheme of merger or amalgamation may be entered into between two or more small companies or between a holding company and its wholly-owned subsidiary company or such other class or classes of companies as may be prescribed, subject to the following, namely: –
a) a notice of the proposed scheme inviting objections or suggestions is issued by the transferor company or companies and the transferee company from the Registrar and Official Liquidators where registered office of the respective companies are situated and persons affected by the scheme within thirty days;
b) the objections and suggestions received are considered by the companies in their respective general meetings and the scheme is approved by the members or class of members at a general meeting holding at least ninety per cent. of the total number of shares;
c) Each of the companies involved in the merger files a declaration of solvency in the prescribed form with the Registrar of the place where the registered office of the company is situated;
d) the scheme is approved by majority representing nine-tenths in value of the creditors or class of creditors of respective companies, in a meeting convened by the company by giving a notice of twenty-one days along with the scheme to its creditors for the purpose approving in writing.
2. The transferee company shall file a copy of the scheme so approved in the manner as may be prescribed, with the Central Government, Registrar and the Official Liquidator where the registered office of the company is situated.
3. If the Registrar or the Official Liquidator has no objections or suggestions to the scheme on the receipt of the scheme, the Central Government shall register the same and issue a confirmation thereof to the companies.
4. If the Registrar or Official Liquidator has any objections or suggestions, he may communicate the same in writing to the Central Government within a period of thirty days.
Provided that if no such communication is made, it shall be presumed that he has no objection to the scheme.
5. If the Central Government after receiving the objections or suggestions or for any reason is of the opinion that such a scheme is not in public interest or in the interest of the creditors, it may file an application before the Tribunal within a period of sixty days of the receipt of the scheme stating its objections and requesting that the Tribunal may consider the scheme under section 232.
6. On receipt of an application from the Central Government or from any person, if the Tribunal, for reasons to be recorded in writing, is of the opinion that the scheme should be considered as per the procedure laid down in section 232, the Tribunal may direct accordingly or it may confirm the scheme by passing such order as it deems fit.
Provided that if the Central Government does not have any objection to the scheme or it does not file any application under this section before the Tribunal, it shall be deemed that it has no objection to the scheme.
7. A copy of the order under sub-section (6) confirming the scheme shall be communicated to the Registrar having jurisdiction over the transferee company and the persons concerned and the Registrar shall register the scheme and issue a confirmation thereof to the companies and such confirmation shall be communicated to the Registrars where transferor company or companies were situated.
8. The registration of the scheme under sub-section (3) or sub-section (7) shall be deemed to have the effect of dissolution of the transferor company without process of winding-up.
9. The registration of the scheme shall have the following effects, namely:
a) transfer of property or liabilities of the transferor company to the transferee company.
b) the charges, if any, on the property of the transferor company shall be applicable and enforceable as if the charges were on the property of the transferee company.
c) legal proceedings by or against the transferor company pending before any court of law shall be continued by or against the transferee company;
d) where the scheme provides for purchase of shares held by the dissenting shareholders or settlement of debt due to dissenting creditors, the amount to the extent it is unpaid, shall become the liability of the transferee company
10. A transferee company shall not on merger or amalgamation, hold any shares in its own name or in the name of any trust either on its behalf or on behalf of any of its subsidiary or associate company and all such shares shall be cancelled or extinguished on the merger or amalgamation.
11. The transferee company shall file an application with the Registrar along with the scheme registered, indicating the revised authorised capital and pay the prescribed fees due on revised capital:
Provided that the fee, if any, paid by the transferor company on its authorised capital prior to its merger or amalgamation with the transferee company shall be set-off against the fees payable by the transferee company on its authorised capital enhanced by the merger or amalgamation.
12. The provisions of this section shall mutatis mutandis apply to a company or companies specified in sub-section (1) in respect of a scheme of compromise or arrangement referred to in section 230 or division or transfer of a company referred to clause (b) of subsection (1) of section 232
13. The Central Government may provide for the merger or amalgamation of companies in such manner as may be prescribed.
14. A company covered under this section may use the provisions of section 232 for the approval of any scheme for merger or amalgamation
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