TaxTMI 
TaxTMI 
2020 (2) TMI 761
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....LP) with M/s Qube Cinema Technologies Pvt Ltd (hereinafter referred to as transferee company) and their respective partners, shareholders and creditors moved joint company petition CP No.123/CAA/2018 under Section 230 to 232 of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamation) Rules 2016 and National Company Law Tribunal Rules, 2016 before NCLT, Chennai. Transferor LLP is proposed to be amalgamated and vested with transferee company. Transferor LLP is incorporated on 4.1.2016 under the provisions of Limited Liability Partnership Act, 2008 having its registered office at 42, Dr. Ranga Road, Mylapore, Chennai. The transferee company is a private limited company incorporated on 12.1.2017 under the Companies Act, 2013 and having its registered office at 42. Dr. Ranga Road, Mylapore, Chennai. Both the incorporated bodies are engaged in the business of establishing and or acquiring Audio and Video Laboratories for Recording, Re-recording, Mixing, Editing, Computer Graphics and special effects for Film, Television Video and Radio Productions etc. 3. NCLT after considering the scheme found that all the statutory compliances have been made under Sec....
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....o merge in Indian company. To read the Act, 2013 as prohibiting amalgamation of an Indian LLP with an Indian company would be absurd and discriminatory, thus the principal casus omissus is applicable. 8. It is also submitted that in LLP Act and Act, 2013 the amalgamation scheme has to be sanctioned by the same authority i.e. NCLT. Hence there is no utility that LLP first convert into company then apply for merger. It is further submitted that the right to re-structure a business or corporate structure is implicit in the fundamental right to trade. Any restriction on a such right must be expressly provided by legislation. It cannot be read into statute by implication. On the contrary, statute must be liberally interpreted to facilitate the constitutional scheme of freedom trade. 9. Having heard the learned counsel for the parties we have considered the submissions. 10. It is undisputed that transferor LLP is incorporated on 04.01.2016 under the provisions of LLP Act, 2008 and the transferee company is incorporated on 12.01.2017 under the Act, 2013. Thus these corporate bodies were governed by the respective Acts and not by earlier Act, 1956. Section 232 of Companie....
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....xxx (8) xxxx. Chapter XXI Part I Section 366 of the Companies Act 2013 reads as under: 366. Companies capable of being registered.- (1) For the purposes of this Part, the word "company" includes any partnership firm, limited liability partnership, cooperative society, society or any other business entity formed under any other law for the time being in force which applies for registration under this Part. (2) With the exceptions and subject to the provisions contained in this section, any company formed, whether before or after the commencement of this Act, in pursuance of any Act of Parliament other than this Act or of any other law for the time being in force or being otherwise duly constituted according to law, and consisting of two or more members, may at any time register under this Act as an unlimited company, or as a company limited by shares, or as a company limited by guarantee, in such manner as may be prescribed and the registration shall not be invalid by reason only that it has taken place with a view to the company's being wound up: Provided that- xxxxx 11. It is apparent that as per Section 232 of Act, 2013 ....
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....side India can be merged into a Indian company. 16 Now we have considered when the principal of casius omissus can be applied. Hon'ble Supreme Court in the case of Union of India Vs Rajiv Kumar (2003) 6 Supreme Court Cases 516 held that subsidiary rules of interpretation-Casus Omissus when can be supplied by the Court. Para 23 and para 24 of the judgement is as under:- "23. Two principles of construction-relating to casus omissus and the other in regard to reading the statute/statutory provision as a whole-appear to be well settled. Under the first principle a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself. But, at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly ....