The Court will confirm a Scheme of Amalgamation if it is satisfied that all statutory formalities have been complied with, the Scheme is fair and reasonable, there is no fraud involved, and there are no dissenting shareholders.

( 1 ) THIS is an application for confirmation of the Scheme of amalgamation of the petitioner Nos. 2 to 7 with the petitioner No. 1. On 28th September, 1994 an order was passed directing separate meeting of the members of the petitioner companies to be held for the purpose of considering and if thought fit approving with or without modification 9 the said scheme of Amalgamation. The said order was made in Form No. 35 under Rule 67 on an ex parte application of the applicants. The meetings were duly held under the Chairmanship of the Chairman appointed by this Court and the scheme was approved by the members of the petitioner companies at their respective meetings unanimously. Thereafter, the application was made under Section 391 (2) for confirmation of the said Scheme on the basis of the report filed by the Chairman.

( 2 ) THIS application for confirmation was opposed at the first instance by Narayan Prasad Lohia representing group of shareholders of the Transferee Company. After the matter was heard for two days Learned Counsel on behalf of the said Narayan Prasad Lohia submitted that he has instruction not to oppose the application. His further submission is recorded in the minutes of the order dated 27-2-1996 which is set out hereinbelow :"the Court : Mr. S. K. Gupta learned advocate on behalf of Mr. Narayan Prasad Lohia and his group submits that talks of settlement is going on between the family members and he expects that amicable settlement will be achieved and good relationship may be established between the members of the family and as such he does not oppose this application. Mr. Anindya Mitra, learned advocate submits that the company is not aware nor concerned with such settlement between the members of Narayan Prasad Lohia family and the same is not relevant for deciding this matter. He further submits that the company does not admit that any talks of settlement is going on. This matter Stands adjourned till 4th March, 1996 when it will appear at the top of this list. "

( 3 ) THE learned ,advocate for the Central Government who appeared originally submitted that he had instruction not to oppose the appliction. Thereafter, the Central Government was represented by another advocate Mr. Susanta Kundu who has made his submissions raising several objections. The main contention of Mr. Kundu, learned advocate for the Central Government is that the Transferee Company does not carry on business in shares as are done by the Transferor Companies. The Transferee company namely, E. I. T. A. India Ltd. carries on business transport mainly. Moreover, the amalgamation clause, namely, Clauses 8-7 in the Memorandum and Articles of Association does not permit the present amalgamation.

( 4 ) TRANSFEROR Company No. 1 has no amalgamation clause in its Memorandum a Articles of Association, the Transferor Company Nos. 2 and 6 have such a clause in its Memorandum and Articles of Association and the Transferor Company Nos. 3, 4 and 5 have clauses permitting it to enter into partnership and/or any arrangement.

( 5 ) THE further contention of Mr. Kundu is that the Memorandum being the charter of the company defines the limitations of its power and the company has no power to do any act not authorised expressly or impliedly by its Memorandum and any act so done is ultra vires and incapable of ratification, even if every member of the company assents to it. He has relied upon the following decisions :- (1) Pacific Coast Coal Mines v. Arleuthnot reported in 1917 AC 607. (2) Ashlevry Railway Carriage and Iron Company v. Riche reported in (1875) 7 HL 653. Mr. Kundu has further submitted that Section 17 of the Companies Act, 1956 specifically provides for alteration of Memorandum and Section 17 (1) (g) of the Act enables a company to alter its Memorandum by inclusion of a clause for amalgamation. This section provides a complete procedure for the same safeguarding the interest of the affected parties. It was previously within th