- (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 obtained from the Central Government under Section 32 of the 1973 Act, the petitioner could not have launched the present proceedings.
(2.) The petitioner has carried an ex parte decree of the City Civil Court and says that upon the company's failure to discharge such decretal debt, the company is liable to be wound up. A notice under Section 434 of the Companies Act has been issued on behalf of the petitioner and received by the company. The company asserts that it is a mining company within the meaning of Section 2(j) of the 1973 Act. The company insists 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.''
(3.) The company has also disclosed that the company has applied for setting aside the ex parte decree of May 6, 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 petitioner has averred in its affidavit-in-reply that the application for setting aside the decree has not even been served on it and the company has not been able to demonstrate that such application has been served on the petitioner. Though there is a paragraph where the merits of the petitioner's claim in the suit have been referred to by the company, not much is said on such aspect at the hearing. In addition to Section 28 and 32 of the said Act of 1973, the company has relied on Section 20 and Section 5(2) thereof. The petitioner has referred to Sections 8, 17 and 20 to 23 of the said Act and the provisions of the Coal India (Regulation of Transfers and Validation) Act, 2000. In the said Act of 1973, a ''mining company'' has been defined as follows: ''2. Definitions. - .... (j) ''mining company'' means 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:'' 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. 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 Concession Rules; and all the rights and liabilities of the Central Government in relation to such coal mine shall, on and from the date of such vesting, be deemed to have become the rights and liabilities, respectively, of the Government company.'' ''28. Effect of this Act on other laws. - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other 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.'' The company has referred to a judgment reported at (Punjab National Bank v. Official Liquidator, 1986 AIR(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 (Nationalisation) Act, 1972 requesting such commissioners to refrain from settling the claims of, or making payment to, the creditors or contributories of the company (in liquidation) without obtaining leave of the Rajasthan High Court under Section 446 of the Companies Act. A bank which was a creditor of the company (in liquidation) applied in 1981 to the Rajasthan High Court for the official liquidator's notice to the commissioner under the 1972 Act to be annulled. Similar applications by an employee and other creditors who had petitioned either commissioner for payment were also dealt with in the judgment. The Court found that the name of the company figured in the first schedule to the 1972 Act and in the schedule to the 1973 Act and concluded that such company was a ''mining company'' 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. ;