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TMI Blog2013 (7) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporation (Objectors). JUDGMENT This company application has been moved by Topworth Steels and Power Pvt Ltd, a company incorporated under the Companies Act, 1956, seeking to recall an order dated 1st July 2011 passed in the Company Scheme Petition No.43 of 2011 connected with Company Summons for Direction No.8 of 2011. 2} It is stated that in the affidavit filed in support of this application by Mr.Manindra Satyendra Sharma, who is an authorised signatory of the applicant states that this Court was pleased to sanction a scheme of amalgamation of the applicant and Topworth Urja and Metals Ltd being the transferor company with Crest Steel and Power Pvt Ltd, viz, the transferee company, by order dated 1st July 2011. It is stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .Tulzapurkar, learned senior counsel appearing on behalf of the applicant relies upon Rule 9 of the Companies Court Rules, 1959 and submits that the rules do not in any manner limit or otherwise affect the inherent powers of this Court to give such directions or pass such orders as may be necessary for the ends of justice or to prevent the abuse of process of Court. In the instant case, there is no question of abuse of the process of Court being prevented. The request is to exercise these inherent powers to meet the ends of justice. It is contended that once the scheme has not been given effect to and cannot be given effect to unless the relevant clauses of the scheme are complied with and implemented, then, there is no impediment in making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Trading Corporation of India Ltd should be wound up by this Court. There is no obligation then to file any petition and to seek winding up. It is in these circumstances and when a fraud is played upon the Court, that even otherwise no relief shall be granted in favour of the applicants. It is submitted that the parties were aware of the consequences flowing from the provisions of the Mines and Minerals Act and necessary and relevant rules framed in that behalf. If the mining and prospecting licence cannot be transferred in law, then, there was no necessity of seeking any such sanction and the parties must have been aware of the same throughout. Once the application is made on the basis of the transfer of licence and take over of business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eror and unless the dues are repaid or secured by the transferee, the scheme should not be sanctioned, was the objection. That objection was also considered and ultimately the Court sanctioned the scheme and directed the petitioners to lodge a copy of the said order and scheme duly authenticated by the Company Registrar, with the concerned Superintendent of Stamps for the purpose of adjudication of stamp duty payable, if any. 6} It is stated that nothing has been done in pursuance of this order and my attention is invited to clause 20 of the scheme. It is contended that the scheme envisages that such other sanctions and approvals including of any governmental authority as required by law, should be obtained in terms of clause 20 and what i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the compromise and its implementation by the parties. During the course of exercising such power, that sub-section (1) of section 392 of the Companies Act, 1956 envisages that the Court can give such directions in regard to any matter or may make modifications in the compromise or arrangement as it may think necessary for the proper working of the compromise or arrangement. It is only when the Court considers the request made in terms of sub-section (1) and that it is satisfied that the compromise or arrangement cannot be worked satisfactorily with or without modification, that in terms of sub-section (2) it can suo motu or on the application of the person interested, make an order of winding up the company. This is when the scheme is not o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Trading Corporation of India nor shall if affect its right to seek winding up of the 1st transferor company or to take such proceedings against it as are permissible in law. All the contentions of the State Trading Corporation of India in that behalf are kept open and it is clarified that the order passed approving the scheme or any observations therein shall not affect the rights and pleas and prejudice the contentions of the State Trading Corporation of India by giving such clarifications and holding that there is no material to conclude that any fraud has been practised or perpetrated on this Court, that the relief as prayed is granted. The order sanctioning the scheme is recalled and set aside. Needless, therefore, to state that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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