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TMI Blog2010 (6) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... ecree is set aside within such time, the company will be entitled to the maturity value, less the Registrar’s commission. In default of the security being furnished or the costs being tendered within the time permitted, the petitioner will advertise the petition in The Statesman and in Aajkaal. Publication in the Official Gazette will stand dispensed with. The advertisements should indicate that the matter will appear in Court on the first available working day after the expiry of four weeks from the date of publication. - C.P. NO. 483 OF 2009 - - - Dated:- 18-6-2010 - SANJIB BANERJEE, J. Abhrajit Mitra and Soumen Das for the Petitioner. P.C. Sen, Sourya Sadhan Bose and S. Prasad for the Respondent. ORDER 1. A preliminary point has been taken by the company to ward off admission of this creditor s winding-up petition. The company says that section 32 of the Coal Mines (Nationalisation) Act, 1973 gives the company a special status and such provision, by virtue of section 28 of the said Act, has overriding effect over the provisions of the Companies Act, 1956 which is the general statute. The company maintains that without previous leave being obtaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eans a company owning a coal mine, and in relation to a foreign company within the meaning of section 591 of the Companies Act, 1956, the undertaking of that company in India:" 6. For some time at the hearing the company pursued section 20 of the 1973 Act, suggesting that a creditor of the company seeking to assert a claim against it had to approach the Commissioner of payments under such Act. Thankfully, however, such line of argument was subsequently abandoned. 7. Sections 5(2), 28 and 32 of the said Act of 1973 have also to be noticed in the context of the preliminary challenge presented by the company : "5. Power of Central Government to direct vesting of rights in a Government company. ****** (2) Where the right, title and interest of an owner in relation to a coal mine vest in a Government company under sub-section (1), the Government company shall, on and from the date of such vesting, be deemed to have become the lessee in relation to such coal mine as if a mining lease in relation to the coal mine had been granted to the Government company and the period of such lease shall be the entire period for which such lease could have been granted under the Mineral Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any" within the meaning of either Act. The Court noticed that section 28 in both the 1972 Act and in the 1973 Act was identical and held that section 446 of the Companies Act could not be invoked to restrain the Commissioner appointed under either Act from exercising the powers conferred by the special statutes. The Court recorded a submission of the applicants that the order of winding up itself was liable to be set aside as the same was in derogation of section 32 of either Act, but declined to deal with the same since, by allowing the applications and permitting the Commissioner under either Act to perform his functions without any fetter, the Court had effectively negated the impact of the winding up order on the steps required to be taken under the said special statutes. 9. The judgment is not an authority for the proposition that Coal India Ltd. is a mining company within the meaning of the 1973 Act or that such company is entitled to the special status under section 32 of the 1973 Act accorded to a mining company whose coal mine had vested in the Central Government. What is in issue in the present proceedings is as to whether the company in the present case can cite sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see the 1973 Act and sections 28 and 32 thereof in perspective. The said Act of 1973, as its long title suggests, was enacted to provide for the acquisition and transfer of the right, title and interest of the owners of the coal mines specified in the schedule thereto with a view to reorganising and reconstructing such coal mines so as to ensure the rational, coordinated and scientific development and utilisation of coal resources consistent with the growing requirements of the country. The Legislature felt that the ownership and control of such resources should be vested in the State and so distributed as to best subserve the common good. The said Act of 1973 was preceded by the Coal Mines (Taking over of Management) Act that came into force about two months prior to the Nationalisation Act. The Taking over of Management Act replaced an ordinance that had been introduced some time earlier. The statement of objects and reasons of the Taking over of Management Act recorded that coal was the most important indigenous source of commercial energy in the country and though it was available in adequate quantity the reserves were unevenly distributed among the different regions. It notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of authority between the Official Liquidator presiding over the liquidation proceedings and the Commissioner of payments under the 1973 Act. It is precisely for such purpose that section 32 was included in the special Act to obviate the conflict and, subject the Central Government s sanction to do otherwise, retain the primacy of the Commissioner of payments in respect of the matters covered under Chapter VI of the 1973 Act which would otherwise have fallen squarely in the domain of the Official Liquidator. Section 28 of the 1973 Act also achieves the same purpose in that the procedure recognised under the said Act, which is undoubtedly a special statute qua the Companies Act which is a general statute, has to be given preference to the ordinary process in respect of matters covered thereby. 16. The single sentence from Pradyut Bordoloi s case ( supra ) that the company asserts as the Supreme Court s recognition of the special status of this company has to be understood in the context in which it was expressed. To begin with, the sentence is a part of a judgment and not a statute. Without going into the canons of how a judgment has to be read, such sentence would imply th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o admit a winding up petition founded on an ex parte decree if it finds the original claim or cause of action to be substantially mired in doubt. The company in this case has not been able, or even attempted, to establish that the petitioner s claim in its action was bereft of merit. 20. The petitioner issued the statutory notice on 6-8-2009 to which there was no reply by the company. A presumption has arisen in the circum-stances, which it was open to the company to rebut. But the company has altogether failed to discharge such onus having pinned its all on its outrageous preliminary objection. 21. The result is that the petition is entitled ex debito justitiae to have its petition admitted. CP No. 483 of 2009 is admitted in the principal sum of Rs. 7,77,980.80 together with interest at the rate of 9 per cent per annum from the date of the decree till payment. If the company furnishes security for such amount, inclusive of interest, in favour of the Registrar, Original Side, and pays costs assessed at 5000 GM to the petitioner within a fortnight of the petitioner s written demand enclosing an authenticated copy of this order, the petition will remain permanently stayed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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