9911796707
TMI Blog2011 (12) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 2006, August 25, 2006, August 30, 2006 and September 4, 2006 - all issued by CTL; letter dated September 4, 2006, issued by Anup Agarwalla of CML and letters dated November 17, 2006, December 20, 2006, December 21, 2006 and December 26, 2006 being annexures 'A', 'G', 'I', 'J', 'K', 'L', 'M', 'N', 'O', 'P' respectively and, also, for leave to rely upon inspection reports dated July 28, 2006 and September 5, 2006 being annexures 'R' and 'S' respectively and, also, to rely upon a Press Report dated December 24, 2006 being annexure 'Q', at the time of hearing of the C.A. no. 667 of 2006. 5. In substance, in the said application, the petitioners pray for taking into consideration events subsequent to the order passed by this Court and for leave to rely upon certain documents in support of their applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 sanctioning scheme of arrangement in the light of the said family arrangement. (f) On June 18, 2002, the State of Jharkhand executed the mining lease in respect of the said coal mine in favour of CTL. (g) On July 1, 2002, the said deed of lease was registered in favour of CTL. (h) On June 6, 2003, the advocates-on-record of CTL and CML issued a notice addressed to the Secretary, Ministry of Coal, Government of India, intimating that CTL and CML had filed a petition for confirmation of a scheme for transfer of Coal Mine Division held in the name of CTL in favour of CML. Similar notices were, also, issued to the Chief Secretary, Government of Jharkhand and the Secretary, Mines and Geology Department, Government of Jharkhand. (i) On April 28, 2003, the Regional Director, Department of Company Affairs, intimated the learned Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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, 2005, the writ petition filed by CTL in the High Court of Jharkhand at Ranchi being W.P.C. no. 3961 of 2005, inter alia, seeking direction upon the respondents in the said writ petition to dispose of their applications for withdrawal of their applications for transfer of the mining lease, came up for hearing before M.Q. Iqbal, J., in presence of CML. (t) M. Q. Iqbal, J., dismissed the said writ petition holding, inter alia, that the said Court was unable to grant any relief to the writ petitioner unless the order passed by this Court in the company petition was modified. However, Iqbal, J. observed that CTL, if so advised, might move the appropriate authority for redress of its grievances. (u) On March 28, 2006 Mahendra Kumar Agarwalla affirmed an application for re-calling of the order dated May 13, 2003 purportedly on behalf of both CTL and CML. This application is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 scheme could not have been sanctioned. 9. The scheme was not for implementation of a family arrangement. Moreover, the family arrangement cannot be the basis for sanctioning the scheme. 10. Mr. Anindya Kumar Mitra, learned senior advocate, appearing for CML submits that the application filed under Sections 391 and 392 of the Companies Act, 1956 is not maintainable. Mr. Mitra submits that the application for re-calling is a mala fide application. This application is not moved in the aid of the scheme, but for destruction of the scheme. 11. Mr. Mitra submits that already the authorities have granted permission for such transfer; the State of Jharkhand has executed a deed of rectification substituting the name of CML instead of and in place of CTL. 12. Mr. Mitra, finally, submits that the contract to transfer the mining lease is not invalid between the parties subject, however, to sanction from the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 lease or any right, title, or interest therein otherwise than in accordance with Sub-rule (2): Provided that no such order shall be made without giving the lessee a reasonable opportunity of stating his case." 14. Mr. Mukherjee, learned senior advocate, appearing in support of this application, strenuously argues that the scheme is in violation of the said rules and hence, it could not have been sanctioned. Thus, the order sanctioning the scheme has to be recalled. 15. Mr. Mukherjee placed strong reliance in the case of Miheer H. Mafatlal v. Mafatlal Industries Ltd. [1996] 10 SCL 70 (SC) in support of his submission that the proposed scheme of compromise and arrangement is violative of the provisions of the said Rules and is, therefore, contrary to public policy. This Court could not have sanctioned the scheme of arrangement. 16. Mr. Mukherjee, also, strongly relied upon the decision in the case of Sudhansu Kanta v. Manindra Nath A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 Section 56 of the Indian Contract Act, 1872. However, the provisions of the said Section cannot apply to a case of "self-inducted frustration". In other words, the doctrine of frustration of contract cannot apply where the event, which is alleged to have frustrated the contract, arises from the act or election of a party. 26. In this case, CTL, unilaterally, moved an application for withdrawal of the application for transfer of the mining lease and, thereafter, filed a writ petition in the High Court of Jharkhand at Ranchi, to frustrate the arrangement. 27. The transfer of mining lease by CTL to CML is complete. The consent of the State Government has, since, been obtained. Therefore, in no case, the scheme could be frustrated. 28. Moreover, in between CTL and CML, the transaction is valid. CTL cannot, now, turn round and throw out CML on the plea of the transaction being unauthorised when CTL in the balance sheet admitted that the mining division of CTL has been transferred and vested in CML. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
