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Judgment
The petitioner has filed this writ petition under Article 226 of the Constitution of India challenging the memo dated 6-8-2007 (Annexure P/13) and the notice dated 31-8-2008 (Annexure P/15) respectively passed by the Collector, Raipur by which the Collector Raipur has demanded payment of penal interest for alleged delay in payment of the outstanding amount of royalty on limestone to the tune of Rs.1,13,15,527/-.
The brief facts as reflected from the record are that the petitioner/Ambuja Cements Limited is a company registered under the provisions of Companies Act, 1956 having its unit at Bhatapara now District Baloda Bazar. Petitioner/company is involved in manufacturing of cement and for manufacturing cement limestone is required as raw material which is extracted from the mine leased to the company under the Mines and Minerals (Regulation and Development) Act, 1957 and the Mineral Concessions Rules 1956. The petitioner company has commenced its production in the year 1987 and due to certain financial constrains, the company has suffered loss, therefore, the company has been registered with the Board for Industrial and Financial Reconstruction (for short, “BIFR”) in June 1994 and thereafter BIFR vide its order dated 7-10-1997 sanctioned rehabilitation scheme of the company. The relevant clause of the sanctioned scheme which is required for adjudication of the present case is as under:
f) To consider waiver of additional charges, penal interest and liquidated damages on arrears of sales tax, royalty and electricity bills till the date of sanction of the scheme by the BiFR.
g) To consider rescheduling the arrears in respect of royalty, Mineral Rights Tax, and power bill or any other charges payable to the Government of Madhya Pradesh (GOMP),
h) To consider renewal of the mining lease for another 20 years for limestone under the provisions of the Mines and Miners (R&D) Act, 1957 and the Minerals Concession Rules.
i) To consider freezing the cost of power to be supplied by MPEB for a period of five years from the date of the scheme being sanctioned by the BIFR.
In pursuance of the scheme sanctioned by the BIFR, the State Government has sanctioned rehabilitation scheme towards waiver of additional charges, penal interest and liquidated damages on arrears of sales tax, royalty and electricity bills and has issued scheme on 25-10-1999 providing relief to implement the order passed by the BIFR. The relevant clauses of the Scheme 25-10-1999 read as under:
राज्य शासन द्वारा की जाती 18 1999 को संषोधित करते हुय निम्ननुसार संसोधित स्वीकृत की जाती हैः-
खनिज क्षेत्र विकास उपकर की राषि 01 जुलाई, 86 से दिनांक 04.04.91 तक रूपय 3,71,04,296.58 पैसे ;तीन करोड इकहत्तर लाख चार हजार दो सौ छियानवे रूपय एवं अठ्ठावन पैसे एवं उस पर ब्याज रूपय 1,70,00,000.00 ;एक करोड सत्तर लाख रूपय इस प्रकार कुल रूपय 5,41,04,296.58 पैसे ;पांच करोड इकतालीस लाख चार हजार दो सौ छियानवे रूपय एवं अठ्ठावन पैसे मात्र की बकाया राषि के संबंध में बी.आई.एफ. आर. योजना की स्वीकृति की दिनांक से 2 वर्ष ;दो वर्ष के विलंबित भुगतान की सुविधा देते हुय राषि 10 ;दस समान वार्षिक किस्तों में ब्याज रहित भुगतान किय जाने की स्वीकृति प्रदत्त की जाती है।
Thereafter, the Collector, Raipur had issued memo dated 6-9-2004 directing the petitioner to deposit the royalty for the period from April 1995, March 1997 to September, 1997 to the tune of Rs.1,20,05,000/-. The petitioner has submitted reply to the memo dated 6-9-2004 issued by the Collector mainly contending that the State of Madhya Pradesh has framed rehabilitation scheme as per the direction of the BIFR dated 7-10-1997 and since the company was declared sick under the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short, SICA), therefore, interest on installment is against the scheme framed by the Government and would pray for withdrawal of the demand notice. The petitioner has also submitted its reply dated 1-6-2004 that they have paid four installments within re-scheduled period as the Government has sanctioned ten equal installment facilities to them to pay the arrears of royalty to the tune of Rs.1,20,000,00/- and accordingly they have paid the instalments vide Annexure P/8 which reads as under.
S.No.
Instalment amount of Royalty (in Rs.).
Due date as per re-schedulement
Actual date of Royalty payment
1.
12,00,000/-
December, 1999
13-12-1999
2.
12,00,000/-
December, 2000
20-12-2000
3.
12,00,000/-
December 2001
17-12-2001
04
12,00,000/-
December 2002
24-12-2002
05
12,00,000/-
December, 2003
12-12-2003
As such the petitioner prayed for withdrawal of the recovery proceeding to the Collector, Raipur.
The Collector had issued another notice to the petitioner on 18-5-2005 (Annxure P/9) and 21-9-2005 (Annexure P/10) and he issued notice dated 6-8-2007 (Annexre P/13) wherein it has been clearly mentioned that the arrears of royalty has been paid to the tune of Rs.1,20,05,375/-, interest of the said royalty from 7-10-1997 to 15-12-1999 comes to Rs.63,07,262/- and they have deposited the same from 26-9-2005 but they have not deposited the interest from 16-12-1999, as such they are directed to deposit Rs.1,13,15,527/-. The petitioner submitted reply taking the same stand and also contended that they have made payment on interest of Rs.63,07,262/- on 26-9-2005 for the period from 7-10-1997 under protest and till 15-12-1999 Rs.120.05 lakhs under protest and without prejudice to their rights and contentions to take such steps as deemed appropriate vide reply dated 14-8-2007 (Annexure P/4).
Thereafter, the Collector had issued memo dated 31-8-2007 (Annexure P/15) reiterating as per BIFR scheme they have given benefit on 25-10-1999, as such after 7-10-1997 on delayed payment no rebate can be granted and has directed them to deposit the amount of Rs.1,13,15,527/- within fifteen days. Thus, memo dated 6-8-2007 (Annexure P/13) and memo dated 31-8-2007 (Annexure P/15) are being challenged in this writ petition.
Respondents/State has filed their return mainly contending that to consider the direction of BIFR for providing rehabilitation scheme the State Government had given personal hearing to the petitioner and have sent proposed scheme to the BIFR in case No 86 of 1994 in case of Modi Cement Ltd, Raipur on 27-07-1998 particularly so far as mineral’s royalty is concerned, it has been clearly mentioned as under:
“a) To recover the arrears of Mineral Area Development (MAD) Cess of Rs. 5,41,00,000/- in ten equal interest free instalments after a moratorium of two years.
b) To waive penal interest on royalty upto the date of sanction of the scheme ie., 07/10/1997”.
Thereafter, the Scheme was framed granting relief to the petitioner company on 25-10-1999 as per the direction of BIFR as detailed above in foregoing paragrahps. Thereafter the petitioner has again preferred a representation to the then Hon'ble Chief Minister, State of Madhya Pradesh which has been rejected by the Mining Department, Government of Madhya Pradesh on 27-4-2000 (Annexure R/1) by observing that since benefit has already been granted, no additional benefit can be granted. The relevant clause of memo dated 27-4-2000 reads as under.
This court while hearing the petition vide its order dated 18-9-2007 has directed that no coercive steps be taken against the petitioner. The interim order passed by this court is still continuing.The respondents/State has taken a specific stand in their return that the order dated 25-9-1999 was passed granting rehabilitation scheme and thereafter petitioner made a representation to the State Government for grant of additional relief which has been rejected on 27-4-2000 (Annexure R/1) but this order has not been challenged, as such the scheme sanctioned on 25-10-1999 has become final, therefore, the petitioner cannot re-agitate the same issue which has attained finality. It has also been contended that the petition is barred by limitation, therefore, the same deserves to be dismissed on delay and laches.
This court vide its order dated 15-6-2023 has directed the State to place on record the documents according to which the State has calculated the interest. In pursuance of the direction given by this court the State has brought additional facts on record wherein it has been categorically mentioned that the Rule 64A of the Mineral Concession Rules 1960 does not create any bar or limitation to enhance the interest amount than the principal amount and it is normal practice that interest amount can certainly go ahead than the principal amount in case of payment of default in payment of balance principal amount. It has also been contended that the penal interest was not to be recovered as per royalty made between the period July, 1993 to the date of the order of BIFR ie. 7-10-1997 and on this account, an amount of Rs.73.81 lakhs was waived to the company and it has been further directed that vide order dated 25-10-1999 issued by the State Government, penal interest is payable after 7-10-1997. It has been further contended that Rule 64-A of the Rules 1960 clearly provides that simple interest at the rate of 24% per annum on any rent, royalty or fee payable under sub-rule (1) of the rule 54) or other sum due to that Government under the Act or these Rules can be recovered. The respondents/State has also clarified the details of period of delayed payment in table format which read as under:
Due royalty amount
Due date for payment
Amount paid inn installment
Date of payment by the petitioner company
Period of delay payment
Number of days in payment
Interest amount accrued on delayed payment of balance principal amount
1,20,05,375
7-10-97-
-
-
7-10-1997 to 15-12-1999
2 years 2 months and 8 days.
63,07,262/- (deposited on 26-9-05)
1,20,05,375
15-12-99
12,00,000
16-12-99
15-12-99 to 16-12-99
01
7,894/-
1,08,05,375
16-12-1999
12,00,000
3-01-2001
17-12-99 to
3-1-01
383
27,21,178/-
96,05,375
3-01-2001
12,00,000
2-01-2002
04-01-01 to
02-01-02
360
22,92,658/-
84,05,375
2-01-2002
12,00,000
27-12-2002
03-01-02 to
27-12-02
353
18,89,656/-
72,05,375
27-12-2002
12,00,000
16-12-2003
28-12-02 to
1t6-12-03
368
16,72,437/-
60,05,375
16-12-2003
12,00,000
20-12-2004
17-12-03 to
20-12-04
368
14,53,136/-
48,05,375
20-12-2004
48,05,375
29-12-2005
21-12-04 to
29-12-05
373
11,78,658/[-
Total
1,13,15,257/-
Mrs. Hamida Siddiqui, learned Deputy Advocate General for the State would submit that the interest has rightly been calculated and would pray for dismissal of the writ petition.
Learned Sr. Advocate assisted by Mr. Aman Pandey, counsel for the petitioner would submit that the impugned impugned demand notice dated 6-8-2007 and 31-8-2007 issued by the Collector, Raipur for an amount of Rs.1,13,15,527/- towards interest on delay payment of royalty is illegal, contrary to law and arbitrary. He would further submit that in view of the scheme and the concession extended by the State Government to the company, the royalty was required to be paid in installments as per the schedules as and when they became due. He would further submit that in order to attract the provisions and power of levy of interest under the said rule, there must exist default in payment of royalty which may be construed in the light of the directions for payment of instalments in the scheme. Interest at the rate mentioned in the aforesaid rule may be levied only in respect of the period of delay computed from the date the installments became due to be paid. While referring to the relevant provisions of the SICA, he would submit that the scheme framed by the BIFR will have over-riding effect and the State cannot take any stand which is contrary to the scheme sanctioned by the BIFR for rehabilitation of the company as according to Section 32 of the SICA it has over-riding effect. As such, demand made by the State Government is bad-in-law and would pray for allowing the writ petition. To substantiate his arguments, he would refer to the judgment of Hon'ble Supreme Court in Modi Rubber Limited vs. Continental Carbon India Ltd., and other and other connected matters reported in 2023 SCC Online SC 296 wherein Hon’ble Supreme Court has held in para graphs 49 and 66 as under:
“49. Thus, the primary concern of the Board would be the revival of the sick company and to save the sick company from winding up. That is why with a view to see that there is no impediment in framing the rehabilitation scheme and to get out the sick company from sickness. Section 22 provides for suspension of legal proceedings, contracts etc. On a bare reading of Section 22 and Section 22A of SICA, it appears that these two provisions primarily ensure that the scheme prepared by BIFR does not get frustrated because of certain other legal proceedings and to prevent untimely and unwarranted disposal of the assets of the sick industrial company. These sections clearly state certain restrictions which will impact upon the implementation of the scheme as well as on the assets of the company.
It is observed and held that the rehabilitation scheme under Section 18 of the SICA, 1985 shall bind all the creditors including the unsecured creditors and the unsecured creditors have to accept the scaled down value of its dues provided under the rehabilitation scheme. Conclusion:-
(i) Civil Appeal No. 375 of 2017 is accordingly allowed. No costs.
(ii) The transfer petition being Transfer Petition (C) No. 543 of 2016 is allowed and is ordered to be transferred to this Court.
(iii) Civil Appeal No. 1755 of 2023 (arising out of SLP (C) No. 4282 of 2020) is allowed and the impugned judgment and order passed by the Madhya Pradesh High Court relying upon the decision of the Delhi High Court in the case of Continental Carbon India Ltd. (supra), which has been set aside by the present order also deserves to be allowed and the impugned judgment and order passed by the High Court of Madhya Pradesh in Civil Revision No. 96 of 2018 is hereby quashed and set aside”.
Per contra, learned State counsel would submit that in pursuance of the scheme sanctioned by the BIFR, the State Government has already forwarded the proposed scheme to the BIFR on 27-7-1998 and thereafter the State Government has issued an order on 25-10-1999 wherein the rehabilitation scheme has been made. This scheme is well known to the petitioner and thereafter the petitioner has also made a representation to the State Government which has also been rejected by the State Government on 27-4-2000. The petitioner has never challenged this order and the notice issued by the State Government is recovery notice which has been issued in pursuance of the sanctioned scheme by the State. The petitioner has never challenged the scheme sanctioned by the State Government, therefore, he is estopped from challenging the same and would pray for dismissal of the writ petition.
I have heard learned counsel for the parties and perused the record with utmost satisfaction.
From the above submissions raised by the petitioner and respondent before this court the point to be emerged for determination by this court is (i) whether the petitioner or the State can go beyond the rehabilitation scheme framed by the BIFR and (ii) whether the writ petition challenging subsequent recovery notice is maintainable or not once rehabilitation scheme has been sanctioned and implemented without challenging the same?.
For better understanding the point emerged in this writ petition, it is expedient for this court to extract the relevant provisions of Sections of Sick Industrial Companies (Special Provisions) Act 1985 and Section 64-A of The Mineral and Concession Rules, 1960 which read as under:
“Section 3(i) of the Sick Industrial Companies (Special Provisions ) Act, 1985 reads as under:
(i) “operating agency” means any public fnancial institution, State level institution, scheduled bank or any other person as may be specifed by general or special order as its agency by the Board.
3(o) “sick industrial company” means an industrial company (being a company registered for not less than fve years) which has at the end of any fnancial year accumulated losses equal to or exceeding its entire net worth.
Reference to Board:
(1) When an industrial company has become a sick industrial company, the Board of Directors of the company, shall, within sixty days from the date of fnalisation of the duly audited accounts of the company for the fnancial year as at the end of which the company has become a sick industrial company, make a reference to the Board for determination of the measures which shall be adopted with respect to the company: Provided that if the Board of Directors had sufficient reasons even before such fnalisation to form the opinion that the company had become a sick industrial company, the Board of Directors shall, within sixty days after it has formed such opinion, make a reference to the Board for the determination of the measures which shall be adopted with respect to the company: 9 [Provided further that no reference shall be made to the Board for Industrial and Financial Reconstruction after the commencement* of the Secularization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, where fnancial assets have been acquired by any secularization company or reconstruction company under sub- section (1) of section 5 of that Act: Provided also that on or after the commencement of the Secularization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, where a reference is pending before the Board for Industrial and Financial Reconstruction, such reference shall abate if the secured creditors, representing not less than three-fourth in value of the amount outstanding against fnancial assistance disbursed to the borrower of such secured creditors, have taken any measures to recover their secured debt under sub-section (4) of section 13 of that Act.
(2) Without prejudice to the provisions of sub-section (1), the Central Government or the Reserve Bank or a State Government or a public fnancial institution or a State level institution or a scheduled bank may, if it has sufficient reasons to believe that any industrial company has become, for the purposes of this Act, a sick industrial company, make a reference in respect of such company to the Board for determination of the measures which may be adopted with respect to such company: Provided that a reference shall not be made under this sub-section in respect of any industrial company by—
(a) the Government of any State unless all or any of the industrial undertakings belonging to such company are situated in such State;
(b) a public fnancial institution or a State level institution or a scheduled bank unless it has, by reason of any fnancial assistance or obligation rendered by it, or undertaken by it, with respect to, such company, an interest in such company.
Inquiry into working of sick industrial companies.—(1) The Board may make such inquiry as it may deem ft for determining whether any industrial company has become a sick industrial company—
(a) upon receipt of a reference with respect to such company under section 15; or(b) upon information received with respect to such company or upon its own knowledge as to the fnancial condition of the company.
(2) The Board may, if it deems necessary or expedient so to do for the expeditious disposal of an inquiry under sub-section (1), require by order any operating agency to enquire into and make a report with respect to such matters as may be specifed in the order.
(3) The Board or, as the case may be, the operating agency shall complete its inquiry as expeditiously as possible and endeavour shall be made to complete the inquiry within sixty days from the commencement of the inquiry. [Explanation.—For the purposes of this sub-section, an inquiry shall be deemed to have commenced upon the receipt by the Board of any reference or information or upon its own knowledge reduced to writing by the Board].
(4) Where the Board deems it ft to make an inquiry or to cause an inquiry to be made into any industrial company under sub-section (1) or, as the case may be, under sub-section (2), [it may appoint] one or more persons to be a special director or special directors of the company for safeguarding the fnancial and other interests of the company [or in the public interest. [(4A) The Board may issue such directions to a special director appointed under sub-section (4) as it may deem necessary or expedient for proper discharge of his duties.]
(5) The appointment of a special director referred to in sub-section (4) shall be valid and efective notwithstanding anything to the contrary, contained in the Companies Act, 1956 (1 of 1956), or in any other law for the time being in force or in the memorandum and articles of association or any other instrument relating to the industrial company, and any provision regarding share qualifcation, age limit, number of directorships, removal from office of directors and such like conditions contained in any such law or instrument aforesaid, shall not apply to any director appointed by the Board.
(6) Any special director appointed under sub-section (4) shall—(a) hold office during the pleasure of the Board and may be removed or substituted by any person by order in writing by the Board;
b) not incur any obligation or liability by reason only of his being a director or for anything done or omitted to be done in good faith in the discharge of his duties as a director or anything in relation thereto;
(c) not be liable to retirement by rotation and shall not be taken into account for computing the number of directors liable to such retirement;
[(d) not be liable to be prosecuted under any law for anything done or omitted to be done in good faith in the discharge of his duties in relation to the sick industrial company. 18. Preparation and sanction of Schemes.—
Preparation and sanction of Schemes.—
(1) Where an order is made under sub-section (3) of section 17 in relation to any sick industrial company, the operating agency specifed in the order shall prepare, as expeditiously as possible and ordinarily within a period of ninety days from the date of such order, a scheme with respect to such company providing for any one or more of the following measures, namely:—
[(a) the fnancial reconstruction of the sick industrial company;
(b) the proper management of the sick industrial company by change in, or take over of, management of the sick industrial company;[ (c) the amalgamation of—
(i) the sick industrial company with any other company, or
(ii) any other company with the sick industrial company; (hereafter in this section, in the case of sub-clause (i), the other company, and in the case of sub-clause (ii), the sick industrial company, referred to as “transferee company”);(d) the sale or lease of a part or whole of any industrial undertaking of the sick industrial company;
[(da) the rationalisation of managerial personnel, supervisory staf and workmen in accordance with law;]
(e) such other preventive, ameliorative and remedial measures as may be appropriate;
(f) such incidental, consequential or supplemental measures as may be necessary or expedient in connection with or for the purposes of the measures specifed in clauses (a) to (e).
(2) The scheme referred to in sub-section (1) may provide for any one or more of the following, namely:—
(a) the constitution, name and registered office, the capital, assets, powers, rights, interests, authorities and privileges, duties and obligations of the sick industrial company or, as the case may be, of the [transferee company];
(b) the transfer to the [transferee company] of the business, properties, assets and liabilities of the sick industrial company on terms and conditions as may be specifed in the scheme;
(c) any change in the Board of Directors, or the appointment of a new Board of Directors, of the sick industrial company and the authority by whom, the manner in which and the other terms and conditions on which, such change or appointment shall be made and in the case of appointment of a new Board of Directors or of any director, the period for which such appointment shall be made;
(d) the alteration of the memorandum or articles of association of the sick industrial company or, as the case may be, of the 19 [transferee company] for the purpose of altering the capital structure thereof or for such other purposes as may be necessary to give efect to the reconstruction or amalgamation;
(e) the continuation by, or against, the sick industrial company or, as the case may be, the [transferee company] of any action or other legal proceeding pending against the sick industrial company immediately before the date of the order made under sub-section (3) of section 17;
(f) the reduction of the interest or rights which the shareholders have in the sick industrial company to such extent as the Board considers necessary in the interests of the reconstruction, revival or rehabilitation of the sick industrial company or for the maintenance of the business of the sick industrial company;
(g) the allotment to the shareholders of the sick industrial company of shares in the sick industrial company or, as the case may be, in the 19 [transferee company] and where any shareholder claims payment in cash and not allotment of shares, or where it is not possible to allot shares to any shareholder the payment of cash to those shareholders in full satisfaction of their claims
—
(i) in respect of their interest in shares in the sick industrial company before its reconstruction or amalgamation; or
(ii) where such interest has been reduced under clause (f) in respect of their interest in shares as so reduced; (h) any other terms and conditions for the reconstruction or amalgamation of the sick industrial company;
(i) sale of the industrial undertaking of the sick industrial company free from all encumbrances and all liabilities of the company or other such encumbrances and liabilities as may be specifed, to any person, including a co-operative society formed by the employees of such undertaking and fxing of reserve price for such sale;
(j) lease of the industrial undertaking of the sick industrial company to any person, including a co- operative society formed by the employees of such undertaking;
(k) method of sale of the assets of the industrial undertaking of the sick industrial company such as by public auction or by inviting tenders or in any other manner as may be specifed and for the manner of publicity therefor;
(l) transfer or issue of the shares in the sick industrial company at the face value or at the intrinsic value which may be at discount value or such other value as may be specifed to any industrial company or any person including the executives and employees of the sick industrial company;
(m) such incidental, consequential and supplemental matters as may be necessary to secure that the reconstruction or amalgamation or other measures mentioned in the scheme are fully and efectively carried out.
(3) [(a) The Scheme prepared by the operating agency shall be examined by the Board and a copy of the scheme with modifcation, if any, made by the Board shall be sent, in draft, to the sick industrial company and the operating agency and in the case of amalgamation, also to any other company concerned, and the Board shall publish or cause to be published the draft scheme in brief in such daily newspapers as the Board may consider necessary, for suggestions and objections, if any, within such period as the Board may specify.]
(b) The Board may make such modifcations, if any, in the draft scheme as it may consider necessary in the light of the suggestions and objections received from the sick industrial company and the operating agency and also from the transferee industrial company and [any other company] concerned in the amalgamation and from any shareholder or any creditors or employees of [such companies]: Provided that where the scheme relates to amalgamation [***] the said scheme shall be laid before [the company other than the sick industrial company] in the general meeting for the approval of the scheme by its shareholders and no such scheme shall be proceeded with unless it has been approved, with or without modifcation, by a special resolution passed by the shareholders of [the company other than the sick industrial company].
(4) The scheme shall thereafter be sanctioned, as soon as may be, by the Board (hereinafter referred to as the ‘sanctioned scheme’) and shall come into force on such date as the Board may specify in this behalf: Provided that diferent dates may be specifed for diferent provisions of the scheme.
(5) The Board may on the recommendations of the operating agency or otherwise, review any sanctioned scheme and make such modifcations as it may deem ft or may by order in writing direct any operating agency specifed in the order, having regard to such guidelines as may be specifed in the order, to prepare a fresh scheme providing for such measures as the operating agency may consider necessary.
(6) When a fresh scheme is prepared under sub-section (5), the provisions of sub-sections (3) and (4) shall apply in relation thereto as they apply to in relation to a scheme prepared under sub-section (1).
[(6A) Where a sanctioned scheme provides for the transfer of any property or liability of the sick industrial company in favour of any other company or person or where such scheme provides for the transfer of any property or liability of any other company or person in favour of the sick industrial company, then, by virtue of, and to the extent provided in, the scheme, on and from the date of coming into operation of the sanctioned scheme or any provision thereof, the property shall be transferred to, and vest in, and the liability shall become the liability of, such other company or person or, as the case may be, the sick industrial company.
(7) The sanction accorded by the Board under sub-section (4) shall be conclusive evidence that all the requirements of this scheme relating to the reconstruction or amalgamation, or any other measure specifed therein have been complied with and a copy of the sanctioned scheme certifed in writing by an officer of the Board to be a true copy thereof, shall, in all legal proceedings (whether in appeal or otherwise) be admitted as evidence.
[(8) On and from the date of the coming into operation of the sanctioned scheme or any provision thereof, the scheme or such provision shall be binding on the sick industrial company and the transferee company or, as the case may be, the other company and also on the shareholders, creditors and guarantors and employees of the said companies.]
(9) If any difficulty arises in giving efect to the provisions of the sanctioned scheme, the Board may, on the recommendation of the operating agency 25 [or otherwise], by order do anything, not inconsistent with such provisions, which appears to it to be necessary or expedient for the purpose of removing difficulty.
(10) The Board may, if it deems necessary or expedient so to do, by order in writing, direct any operating agency specifed in the order to implement a sanctioned scheme with such terms and conditions and in relation to such sick industrial company as may be specifed in the order.
(11) Where the whole of the undertaking of the sick industrial company is sold under a sanctioned scheme, the Board may distribute the sale proceeds to the parties entitled thereto in accordance with the provisions of section 529A and other provisions of the Companies Act, 1956 (1 of 1956).
[(12) The Board may monitor periodically the implementation of the sanctioned scheme.”
Rehabilitation by giving fnancial assistance.—
(1) Where the scheme relates to preventive, ameliorative, remedial and other measures with respect to any sick industrial company, the scheme may provide for fnancial assistance by way of loans, advances or guarantees or reliefs or concessions or sacrifces from the Central Government, a State Government, any scheduled bank or other bank, a public fnancial institution or State level institution or any institution or other authority (any Government, bank, institution or other authority required by a scheme to provide for such fnancial assistance being hereafter in this section referred to as the person required by the scheme to provide fnancial assistance) to the sick industrial company.
(2) Every scheme referred to in sub-section (1) shall be circulated to every person required by the scheme to provide fnancial assistance for his consent within a period of sixty days from the date of such circulation [or within such further period, not exceeding sixty days, as may be allowed by the Board, and if no consent is received within such period or further period, it shall be deemed that consent has been given].
(3) Where in respect of any scheme the consent referred to in sub-section (2) is given by every person required by the scheme to provide fnancial assistance, the Board may, as soon as may be, sanction the scheme and on and from the date of such sanction the scheme shall be binding on all concerned.
[(3A) On the sanction of the scheme under sub-section (3), the fnancial institutions and the banks required to provide fnancial assistance shall designate by mutual agreement a fnancial institution and a bank from amongst themselves which shall be responsible to disburse fnancial assistance by way of loans or advances or guarantees or reliefs or concessions or sacrifces agreed to be provided or granted under the scheme on behalf of all fnancial institutions and banks concerned.
(3B) The fnancial institution and the bank designated under sub-section (3A) shall forthwith proceed to release the fnancial assistance to the sick industrial company in fulflment of the requirement in this regard.]
(4) Where in respect of any scheme consent under sub-section (2) is not given by any person required by the scheme to provide fnancial assistance, the Board may adopt such other measures, including the winding up of the sick industrial company, as it may deem ft.
Efect of the Act on other laws.—
(1) The provisions of this Act and of any rules or schemes made thereunder shall have efect notwithstanding anything inconsistent therewith contained in any other law except the provisions of the Foreign Exchange Regulation Act, 1973 (46 of 1973) and the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976) for the time being in force or in the Memorandum or Articles of Association of an industrial company or in any other instrument having efect by virtue of any law other than this Act.
(2) Where there has been under any scheme under this Act an amalgamation of a sick industrial company with another company, the provisions of section 72A of the Income- tax Act, 1961 (43 of 1961), shall, subject to the modifcations that the power of the Central Government under that section may be exercised by the Board without the Central Government under that section may be exercised by the Board without any recommendation by the specifed authority referred to in that section, apply in relation to such amalgamation as they apply in relation to the amalgamation of a company owning an industrial undertaking with another company”.
“64A. The Mineral Concession Rules 1960:
The State Government may, without prejudice to the provisions contained in the Act or any other rule in these rules, charge simple interest at the rate of 2[twenty-four per cent] per annum on any rent, royalty or fee (other than the fee payable under sub-rule
(1) of rule 54) or other sum due to that Government under the Act or these rules or under the terms and conditions of any prospecting licence or mining lease from the sixtieth day of the expiry of the date fxed by that Government for payment of such royalty, rent, fee or other sum and until payment of such royalty, rent, fee or other sum is made”.
From bare perusal of the aforesaid legal position and the scheme as provided under the SICA, 1985 it is quite vivid that the provisions of this Act will have over-riding effect as per Section 32 of the Act. It is also not in dispute that the scheme has already been framed by the State Government which has been sanctioned by the BIFR and the petitioner was granted relaxation for payment of royalty from 1993 to 1997 when the company remained sick industry and has been granted concession of Rs.73.81 lakhs and the respondent/State has clearly framed scheme wherein installment facility has been granted on 25-10-1999 which clearly provides that after 7-10-1997 the penal interest will be recovered as per rules. It is also not in dispute that the petitioner has paid the instalments dues as aforementioned in foregoing paragraph. Thus, it is quite vivid that these amounts have been deposited after 7-10-1997, as such they are not entitled to get rebate as claimed by the petitioner, even otherwise, the judgment cited by learned Sr. Advocate for the petitioner would also show that the scheme framed by the BIFR will have bind all the creditors including unsecured creditors who scaled down when it is due as provided under the rehabilitation scheme which clearly shows that the scheme which has been framed will have over-riding effect. The scheme itself has provided redemption from payment of royalty to the tune of Rs.73.81 lakhs with a specific clause that after 7-10-1997 the petitioner is liable to pay the penal interest. Thus, I do not find any good ground to quash the recovery notices. Even from the record of the case and the relief sought by the petitioner in the writ petition, it is quite vivid that the petitioner has never challenged the scheme dated 25-10-1999 and memo dated 27-4-2000 by which the representation for grant of additional benefit has already been rejected. Thus, the petition without challenging the original order only execution of the order is being challenged which is not permissible in view of the law laid down by the Hon'ble Supreme Court in case of Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman and Others { 1970(1) SCC 670} wherein the Hon’ble Supreme Court has held at paragraph No. 6 as under:-
“6. A Court executing a decree cannot go behind the decree : between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.
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The High Court was of the view that where there is lack of inherent jurisdiction in the Court which passed the decree, the executing Court must refuse to execute it on the ground that the decree is a nullity. But, in our judgment, for the purpose of determining whether the Court which passed the decree had jurisdiction to try the suit, it is necessary to determine facts on the decision of which the question depends', and the objection does not appear on the face of the record, the executing Court cannot enter upon and enquiry into those facts. In the view of the High Court since the land leased was at the date of the lease used for agricultural purposes and that it so appeared on investigation of the terms of the lease and other relevant evidence, it was open to the Court to hold that the decree was without jurisdiction and on that account a nullity. The view taken by the High Court, in our judgment, cannot be sustained.
Thus, the points No.1 and 2 are answered against the petitioner and in favour of the respondent/State and it is held that the respondent/State has already granted benefit of Scheme framed under SICA to the petitioner/company and without challenging the said scheme the writ petition challenging the recovery notices is not maintainable.
Accordingly, the writ petition being devoid of merit is liable to be and is hereby dismissed.
Interim relief granted by this court earlier is vacated.
Pending interlocutory applications, if any, stand disposed of.