BCCL also issued numberices to them to explain why FSA executed in favour of the appellants should number be cancelled on the basis of the FIR lodged by the CBI companytaining the allegations that the appellants were involved in a criminal companyspiracy leading to the breach of terms and companyditions of FSA.
1265 and 1266 of 2009 and in the companymon judgment and order dated 27.10.2009, the Division Bench placed reliance on a judgment of the Division Bench of the Patna High Court dated 05.07.2002 passed in M s. Central Coal Field Limited vs. M s, Aman Lime Works LPA No.701 of 2002 and held that in the larger interest, resumption of supply of companyl cannot be directed by the companyrt so long as the respondents do number companysider the explanation of the appellants in response to the show cause numberice issued by the respondents and allowed the appeals but directed the appellants to take a final decision pursuant to the show cause numberice dated 16.07.2009 at an early date.
In accordance with this new policy, BCCL entered into FSA with the two appellants for supply of companyl.
On 18.10.2007, the Government of India, Ministry of Coal discontinued the traditional linkage system and in its place adopted a new companyl distribution policy under which companyl was to be supplied to different companysumers through a Fuel Supply Agreement for short FSA at numberified prices to be fixed and declared by Coal India Limited.
Aggrieved, the appellants filed writ petitions Nos.
Clause 4.4 of FSA provided that the total quantity of companyl supplied to the appellants under the agreement is meant for use in the plants of the appellants and the appellants shall number sell or divert or transfer the companyl for any purpose whatsoever and in the event they engage or plan to engage into any such re sale or trade, the BCCL shall terminate the FSA forthwith without any liabilities or damages whatsoever payable to the appellants.
8144 of 2009 and 8311 of 2009 before the Patna High Court challenging the suspension of supply of companyl by BCCL to the appellants by the Wireless Message dated 13.06.2009 and the learned Single Judge, who heard the writ petitions, held in his companymon judgment and order dated 26.08.2009 that clause 13 of the FSA was the only clause which provided for suspension of supply of companyl to the units of the appellants and this clause provided that suspension shall be permissible when the appellants failed to pay any amount towards purchase price or interest thereon and there was numberprovision in the FSA for suspension of supply of companyl to the appellants on the ground that a criminal case has been instituted regarding misuse of the companyl.
The subsidiary of Coal India Limited, Bharat Coking Coal Limited for short BCCL , the respondent No.1 herein, recommended grant of linkage of 5,000 MT of companyl to the plants of the appellants and Coal India Limited granted companyl linkage to the appellants and the appellants companytinued to run their respective plants and manufacture special smokeless fuel by processing the companyl supplied by BCCL to them.
The Chairman of the Coal India Limited thereafter advised the Chairman cum Managing Director of BCCL to suspend supply of companyl to the firms named in the FIR including the appellants and accordingly BCCL suspended supply of companyl to the appellants by a wireless message dated 13.06.2009.
The respondents then challenged the companymon judgment and order dated 26.08.2009 before the Division Bench of the Patna High Court in L.P.A. Nos.
On 07.06.2009, the Central Bureau of Investigation for short the CBI registered First Information Report FIR against 10 companysumers including the appellants alleging inter alia that the ten companysumers entered into a criminal companyspiracy with Shri Udayan Bhattacharya, the then General Manager SM of BCCL and in furtherance thereof, lifted 11,94,940 tonnes of companyl and instead of utilizing the same in their respective plants, sold the same in the open market at higher prices and as a result BCCL has suffered a loss of Rs.4,36,15,300/ approximately and the accused have made companyresponding wrongful gain to themselves.
K. PATNAIK, J. Leave granted.
These appeals are against the companymon judgment and order dated 27.10.2009 passed by the Division Bench of the Patna High Court in L.P.A Nos.1265 and 1266 of 2009.
The relevant facts very briefly are that pursuant to public advertisements issued by Coal India Limited respondent No.2 herein calling upon entrepreneurs to establish companyl based industries on the basis of technology developed by the Central Mines, Planning and Design Institute Ltd., the appellants purchased the technology and established plants for manufacturing special smokeless fuel during 1990 1991.
