TaxTMI 
TaxTMI 
2010 (6) TMI 331
X X X X Extracts X X X X
X X X X Extracts X X X X
....has been issued on behalf of the petitioner and received by the company. 3. The company asserts that it is a mining company within the meaning of section 2(j) of the 1973 Act. The company insist that since the mines ultimately controlled by the company are vested in the Central Government, the company is entitled to the special protection under section 32 of the 1973 Act. In addition, the company claims that as it is engaged in a vital business of public importance, the provisions of the 1973 Act should be construed for its benefit. In its affidavit the company has contended that the petition is not maintainable. At paragraph 3(iii) of such affidavit the company says that there are seven subsidiary coal producing companies under the company and the "company, inter alia (is) engaged in the business of coal mining". 4. The company has also disclosed that the company has applied for setting aside the ex parte decree of 6-5-2008. A copy of the application under Order IX Rule 13 of the Civil Procedure Code has been appended to the company's affidavit. The affidavit does not disclose when such application was made or as to the subsequent steps taken to prosecute the same. The petitione....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r law for the time being in force or in any instrument having effect by virtue of any law other than this Act, or in any decree or order of any court, Tribunal or other authority." "32. Mining companies not to be wound up by the court.-No proceeding for the winding up of a mining company, the right, title and interest in relation to the coal mine owned by which have vested in the Central Government or a Government company under this Act or for the appointment of a receiver in respect of the business of the company, shall lie in any court except with the consent of the Central Government." 8. The company has referred to a judgment reported at Punjab National Bank v. Official Liquidator AIR 1986 Raj. 40. In that case a petition for winding up a privately-owned company was moved and the company was directed to be wound up in August, 1978 with the Official Liquidator attached to the Rajasthan High Court appointed as liquidator of the company. Such Official Liquidator issued, inter alia, a notice under section 446 of the Companies Act to the Commissioner of payments appointed under the 1973 Act and a further notice on the Commissioner of payments under the Coking Coal Mines (Nationali....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Supreme Court observed, at paragraph 4, that certain important matters "including winding up of the company must be reserved for the decision of the President". The company in that case was also Coal India Ltd. It is such solitary sentence from paragraph 4 of the report that the company quotes to buttress its reliance on the provisions of the 1973 Act and its assertion that Coal India Ltd. cannot be dragged to the Company Court on a creditor's winding up petition as it required the consent of the Central Government or the assent of the President of the Union of India for such earth-shattering matter. 11. With respect, that such a point has been taken seriously and urged in earnest is in itself startling. Without going into any other aspect or even the context of the 1973 Act, on a reading of section 32 of the 1973 Act the company would not qualify to urge its applicability in the present case. Section 32 of the 1973 Act requires two primary conditions to be fulfilled: the company must be a mining company within the meaning of the said Act; and, at least one coal mine of such company ought to have vested in the Central Government or a government company under the said Act of 19....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ere to be disbursed by the Commissioner appointed thereunder and the Commissioner was also authorised, under section 20 of the Act, to receive claims from all persons against the owner of a coal mine that was included in the Schedule to the said Act. It is, therefore, evident that only the mining companies which owned the specified coal mines were subject to the authority of the Commissioner of payments under the 1973 Act and section 28 and section 32 make room, inter alia, for the Commissioner to have primacy in respect of such matters in preference to any other authority empowered to discharge similar functions under the general statute. 14. Section 8 of the 1973 Act provides for payment to be made to owners of coal mines that stood vested in the Central Government or a government company under the said Act of 1973. Chapter VI of the 1973 Act relates to the Commissioner of payments and covers sections 17 to 27. Though some of the sections have been subsequently incorporated by amendments to the 1973 Act, Chapter VI relates to the appointment of the Commissioner of payments, his exclusive authority to deal with claims against owners of coal mines which stood vested in the Central....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pany and recognises the exception to the general rule where the board of directors of this company would not be able to recommend its winding up unless the President of India desired it. Incidentally, in the same paragraph 4 of the report that the company has cited, the Supreme Court noticed that the company's memorandum and articles of association were framed in the year 1973 and the company "(came) into existence consequent upon the nationalisation of the coal mines under the Coal Mines (Nationalisation) Act, 1973". 17. The preliminary objection raised by the company is utterly unmeritorious and is rejected. 18. That there is a decree outstanding against the company is indisputable. Ordinarily, a Company Court may adjourn a petition for winding up of a company founded on an ex parte decree against it on the prayer of the company to afford it an opportunity to have the decree set aside. No prayer for adjournment has been made in this case. In any event, it is evident that an application for setting aside the decree was officiously filed in the year 2008 without the company so much as serving a copy thereof on the decree-holder petitioner or taking any meaningful steps to prosecu....