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TMI Blog2011 (12) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... nta Bose for the Appellant. Anindya Kumar Mitra, Debanshu Basak, Piyush Meharia, Amit Meharia and Ms. Aimon Abdullah for the Respondent. ORDER 1. The Court: I am invited to decide following four applications being C.A. no. 209 of 2006, C.A. Tender no. 209 of 2006 (re-numbered as C.A. no. 667 of 2006), C.A. no. 96 of 2007 and C.A. no. 689 of 2009. 2. C.A. no. 209 of 2006 is an application purportedly filed by Castron Technologies Limited and Castron Mining Limited (in short, CTL and CML respectively) for re-calling of the order dated May 13, 2003, inter alia , sanctioning a scheme of arrangement passed in C.P. no. 594 of 2002 connected with C.A. no. 202 of 2002. 3. The application filed under C.A. Tender no 209 of 2006, which has, since, been re-numbered as C.A. no. 667 of 2006, is an application filed by CML and Anup Agarwalla seeking directions for implementation of the scheme sanctioned by the order dated May 13, 2003 in C.P. no. 594 of 2002 connected with C.A. no. 202 of 2002. 4. C.A. no. 96 of 2007 is an application filed by CML and the said Anup Agarwalla for leave to rely upon letters dated May 18, 2006, June 7, 2006, July 6, 2006, August 12, 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and expenses so far incurred or is likely to be incurred in the matter of obtaining such lease from the date of applicability till the grant of lease and, thereafter have been and shall be paid by the First Party and the Third Party shall not be liable on account of such costs and expenses. 5.2 The First Party will be entitled to follow up the application for grant of lease on behalf of CTL. 5.3 Unless the transfer as contemplated in Clause 5, hereinabove, is made, the Third Party agrees to have granted from Castron an irrevocable registered Power of Attorney in favour of the First Party or his nominee to do all acts, deeds and things as may be required in connection with the said Coal Mine in Giridi. 5.4 It is clarified that upon grant of the lease of the said Coal Mine, the First Party shall have absolute right, title and interest in the said Coal Mine and be entitled to deal with the same in any manner as he may deem fit and proper and the other parties hereto shall not have any claim or demand in the said Coal Mine in any manner whatsoever." ( e ) On March 8, 2002, a joint petition was filed by CTL and CML under Sections 391 and 393 of the Companies Act, 1956, for san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003. ( n ) On October 1, 2004, the Deputy Commissioner, Giridi, issued a letter to the Director of Mining, Department of Mining and Geology, Government of Jharkhand, recommending the proposal for transferring the said mining lease in favour of CML. ( o ) On February 4, 2005, the Deputy Secretary, Department of Mines and Geology, Government of Jharkhand, addressed a letter to the Deputy Commissioner of Giridi, requesting him to submit a report as to whether the conditions enshrined in the departmental sanction order dated May 6, 2005, was complied with by CTL or not. ( p ) On February 15, 2005, the Coal Controller, Government of India, granted permission to CTL to open Karharbari (Lower) Seam of Brahmadiha Open Cast Colliery. ( q ) On May 25, 2005, CTL addressed a letter to the Secretary, Department of Mines and Geology, Government of Jharkhand, expressing their intention to withdraw their application for transfer of Coal Mining lease in favour of CML. ( r ) On July 13, 2005, CTL addressed a similar letter to the District Mining Officer, Giridi, expressing their intention to withdraw their application for transfer of mining lease in favour of CML. ( s ) On August 19, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was with CML. ( z ) On June 8, 2009, the State of Jharkhand executed a deed of rectification substituting the name of CML instead of and in place of CTL concerning the mining lease dated June 18, 2002. ( aa ) On November 16, 2009 CML and the said Anup Agarwalla filed an application seeking to rely upon the said letter dated February 26, 2009, letter dated May 27, 2009 and the said deed of rectification dated June 8, 2009 being annexures 'A', 'B' and 'C' respectively to the said application. 8. Mr. Soumendra Nath Mukherjee, learned senior advocate, appearing in support of the application for the re-calling of the order dated May 13, 2003, argues that the order was passed in contravention of the provisions of Rule 37 of the Mines and Minerals Rules, 1960 (the said Rules in short) and, therefore, the scheme could not have been sanctioned by this Court. He submits that by sanctioning this scheme, this Court sanctions a voluntary transfer of the mining lease in violation of the provisions of the said Rules and, therefore, CML is not entitled to get the benefits under the scheme. He submits that, in the absence of previous consent in writing from the authorities concerned the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or interest therein to person who has filed an affidavit stating that he has filed an up-to-date income-tax on the basis of self-assessment as provided in the Income-tax Act, 1961 (43 of 1961), on payment of a fee of five hundred rupees) to the State Government: Provided that the lessee shall make available to the transferee the original or certified copies of all plans of abandoned workings in the area and in a belt 65 metres wide surrounding it: Provided further that where the mortgagee is an institution or a Bank or a Corporation specified in Schedule V, it shall not be necessary for any such institution or Bank or Corporation to meet with the requirement relating to income-tax: Provided further that the lessee shall not charge or accept from the transferee any premium in addition to the sum spent by him, in obtaining the lease, and for conducting all or any of the operations referred to in rule 30 in or over the land leased to him. (3) The State Government may, by order in writing determine any lease at any time if the lessee has, in the opinion of the State Government, committed a breach of any of the provisions of Sub-rule (1) or Sub-rule (1A) or has transferred any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Mr. Mitra, the learned senior advocate, appearing for CML that the provisions of Sections 391 and 392 of the Companies Act can be invoked for the purpose of proper working of the compromise or arrangement. The power conferred by the said Sections on the Court is a power of superintendence, which may be exercised by issuing appropriate directions or effecting necessary modification so as to ensure the proper working of such compromise or arrangement. 23. Therefore, direction or modification, whatever is necessary, is only to ensure proper working of the compromise or arrangement only to achieve that object and no other. 24. Mr. Mitra very rightly relied upon the decisions in the cases of S.K. Gupta v. K.P. Jain [1979] 49 Comp. Cas. 342 (SC) and Maddi Lakshmaiah v. Duncan Agro Industries Ltd. [2001] 34 SCL 250 (Cal.). 25. The Supreme Court of India in the case of Boothalinga Agencies v. VTC Poriaswami Nadar AIR 1969 SC 110 holds that the doctrine of frustration of contract is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and, hence, comes within the purview of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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