M/S Barjora Mining Private Limited v. Haryana Power Generation Corporation Limited (Hpgcl)

o INoTHEoHIGHoCOURToOFoPUNJABoANDoHARYANAoAT CHANDIGARH CWP-23710-2024 Reservedo !"o11#03#202$ D%&eo 'oDe()s) !o"o03#04#202$ M/S BARJORA MINING PRIVATE LIMITED ...Petitioner V/S HARYANA POWER GENERAL CORPORATION LIMITED (HPGCL) & ORS. ...Respondents CORA*" HON+B,Eo*R#oJU-TICEo-URE-HWARoTHA.UR HON+B,Eo*R#oJU-TICEo/I.A-o-URI Present : Mr. Rajiv Atma Ram, Senior Advocate with Mr. Brijesh Khosla, Advocate for the petitioner. Mr. Chetan Mittal, Senior Advocate with Mr. Udit Garg, Advocate, Mr. Kunal Mulwani, Advocate Ms. Shifali Goyal, Advocate for respondents No.1 and 2 – HPGCL. Mr. Anil Mehta, Advocate for respondent No.3. -URE-HWARoTHA.UR1oJ#

¶1Through the instant writ petition, the petitioner has prayed for the issuance of a writ in the nature of Certiorari seeking therebys the quashing of the impugned order dated 30.08.2024 (Annexure P?14), besides seeks the issuance of a writ in the nature of mandamus, thus, directing the ITHLESH KUMAR respondents to open and consider the Technical and Financial Bid of the o petitioner. A further prayer is made for the issuance of a writ in the nature of mandamus, thus directing the respondents to include the petitioner in the negotiations to be carried out in terms of Clause 8.0 and 23.1 of the Notice Inviting Bid (hereinafter referred to as 'NIB').

¶2The Haryana Power Generation Corporation Limited (HPGCL) issued NIB (Annexure P?1) on 05.06.2024, with the last date for submission of Online Bids being 14.06.2024 and 18.06.2024 being the last date for the submission of the hard copy(ies)/bids. The NIB was for a 33?year project to develop and mine coal from the Kalyanpur ? Badalpara Coal Block in Dumka, Jharkhand.

¶3The Petitioner M/s Barjora Mining Private Limited (BMPL), is purportedly a Joint Venture Company comprising i) of M/s Ambey Mining Private Limited, ii) of M/s Godavari Commodities Limited, and iii) of M/s Maheshwari Mining Private Limited (inducted in March 2024 into the Joint Venture Company). The supra participated in the Tender Process as a Joint Venture Company.

¶4After an initial evaluation, HPGCL sought further clarifications from the petitioner via E?mails delivered on 01.07.2024 and on 02.07.2024 (Annexure P?4 & Annexure P?4A). The clarifications except as raised in Point 2 of the Email dated 01.02.2024 were only in respect of documents already provided to the respondents, which were directed to be again provided. Accordingly, the petitioner submitted its response on 05.07.2024 (Annexure P?5). o

¶5Ono16.07.2024,ovideoe-mail,otheopetitioner'soTechnicaloBidowas rejectedobyotheorespondents.oTheosameowasochallengedobyotheopetitioner throughoitsofilingoCWPoNo.16923oofo2024,owhichowasodisposedoofobyothis Courtovideoitsoorderodatedo22.08.2024.oTheooperativeopartoofotheosaidoorder datedo22.08.2024obecomesoextractedohereinafter.- "WeohadoheardolearnedoSenioroCounseloforotheopartiesoat length,owhenoduringotheocourseoofohearing,otheyohaveoreachedoa consensusothatoinotheowakeoofotheoissuesothatoareosoughtotoobe raisedobyotheopetitioner,oitowouldoratherobeoexpedient,oif,oinothe firstoinstance,othoseoareodealtowithobyotheoTenderoEvaluation Committeeo(TEC). Accordingly,otheyosubmitothatoletotheopetitionobeodisposed of, o at o this o stage, o to o enable o the o TEC o to o examine o the concerns/grievances o of o the o petitioner o and o pass o necessary orders,oinoaccordanceowitholaw.oFurther,obeforeoanyosuchoorders areopassed,otheopetitioneroasoalsooRespondentoNo.o2o(AMRoIndia Limited),owhichohasobeenoadjudgedoL1,owouldobeoheard.oAnd,oin this oregard, othey, othrough otheir o authorized o representatives, wouldoappearobeforeotheoTECo(HPGCL,oUrjaoBhawan,oSectoro6, Panchkula)oonoAugusto27,o2024,oato11:00oAM.oHence,otheoorders datedoJulyo16,o2024obeodeemedotoohaveobeenowithdrawn/ recalled. Inotheowakeoofotheopositionosketchedooutoabove,oasoalso theostatementomadeobyolearnedocounseloforotheoparties,othe petitionoisoaccordinglyodisposedoof.oNeedlessotooassertothatoitois pursuantotootheoconsensusothatohasobeenoreachedobetweenothe parties, o the o Respondent o authorities o have o consented o to withdraw/recallotheoimpugnedoorders,owithoutoprejudiceotootheir standosetooutoinotheowrittenostatement.oAnd,oparticularly,oasothe o TECowouldoexamineotheoconcerns$grievancesoofotheopetitioner andopassotheonecessaryoorders,oasoindicatedoabove" ThisoCourtoisosanguineothatotheoTECowouldoexamineothe matteroinotheorightoearnest,oandopassotheoappropriateoorders, assigningoreasonsoinosupportothereof":

¶6Thereafter, the petitioner through its representative, was called for hearing (by e?mail dated 23.08.2023) on 27.08.2024, whereons, the petitioner's representative sought time to give written submissions to the Tender Evaluation Committee of the HPGCL and therebys the said meeting was deferred to 29.08.2024, whereons, the petitioner through its representative submitted its Written Submissions dated 29.08.2024.

¶7It is averred that at no point in time, did the respondent No.1/HPGCL seek any further clarification/ information (other than Annexure P?4 & Annexure P?4A) from the petitioner in respect of its submitted bid and the petitioner was directed to file whatsoever written submissions they/it may choose to do. No query beyond the E?mails (Annexure P?4 & Annexure P?4A) has ever been raised by the respondent No. 1?HPGCL.

¶8On 29.08.2024, the representative of M/s AMR Mining Private Ltd.?respondent No.3 was also present and was heard. From a perusal of impugned order, it purportedly transpired that respondent No. 3 filed written submissions along with case law and certain documents, but these were not supplied to the petitioner nor was the petitioner asked to respond to the same o

¶9On 29.08.2024, during the meeting, the petitioner was orally asked to furnish the following documents:?

(i) Board Resolution of AMPL Authorization of Mr. Jayesh Maitra Majumder,

(ii) Share Certificate for 26000 shares of BMPL held by Maheshwari Mining Private Limited;

(iii) Register of Member of BMPL

(iv) Register of Share Transfer of BMPL

v) Extract of Board Resolution of Share transfer of BMPL These documents were furnished by the petitioner via E?mail to the respondent No.1?HPGCL on 31.08.2024 at 11.35 a.m.

¶10Petitioner received E?mail dated 31.08.2024 at 01.05 p.m., whereby respondent No.1, conveyed that vide order dated 29.08.2024 the earlier impugned Order dated 16.07.2024, rather stood withdrawn, in compliance with the orders of this Court in the earlier Civil Writ Petition filed by the petitioner. There was no reference to any order dated 30.08.2024 therein.

¶11On the very same day i.e. on 31.08.2024, vide E?mail sent at

02.09 p.m., impugned order dated 30.08.2024 (Annexure P?14) was conveyed to the petitioner, thus rejecting the case of the petitioner. It is averred that respondent No.1?HPGCL had itself sought the documents on

29.08.2024, which were provided on 31.08.2024, thus prior to the communication of the impugned order. The relevant part of the impugned I attest to the accuracy andorder becomes extracted hereinafter. o Conclusion: Inoviewoofotheodeliberationsoandoconsiderationsoreferred hereinabove, o the oTender o Evaluation o Committee o is o of o the consideredoopinionothatoM/soBarjoraoMiningoPvt.oLtd.oisonotoa JointoVentureoCompanyobecauseoofotheofactothatotheoCompany doesonotofulfillotheobasicostatutoryorequirementoofobeingoa JointoVentureoCompanyoonotheogroundsothato:-A.o SecuritiesoTransferoFormo(FormoNo.SH-4)oisonotoa properoformobecauseothisoformoisonoolongerovalidoin viewoofonotificationodatedoMayo04,o2022oofotheoMinistry ofoCorporateoAffairs,oGovernmentoofoIndiaovideowhich theoSH-4oformohasobeenochanged.oFurthermore,oSection 56(1)oofotheoCompaniesoAct,o2013ospecificallyoprovides forotheoproperoinstrumentoofotransferoasoprescribed,ois requiredotoobeosubmittedoforoTransferoandoTransmission ofoSecurities. B.o The o Securities o Transfer o Form o (Form o No. o SH-4) specifically o provides o attachment o of o enclosures includingoCertificateoofoSharesooroLetteroofoAllotment etc.otoobeosubmittedoalongowithoSH-4oForm.oThereois noosuchodocumentoFiledobyoM/soBarjoraoMiningoPvt. Ltd. o along o with o SH-4 o Form,o which o is o complete violationoofoSectiono56(1)oofoCompaniesoAct,o2013.oThe saidorequestoforotransferowasotoobeosubmittedotoothe Companyoandothenoitowasotoobeoapprovedoonorejectedoby theoBoardoofoDirectorsoandothereafteroonlyoinocaseoof approvaloitohasotoobeoenteredoinotheoregisteromaintained forotheopurposeoofotransfer.oThereoisotoomaterialoon record o to o show o :-

i) o Whether o share o certificate o was o signed o been o the o transferoroandotransfereeooroinoitsoabsenceotheocopyoof ShareoCertificateotoobeoappendedowithoSH-4oForm.

ii)oNoorequestotootheoCompanyooroapprovalobyotheoBoard of o Directors o to o show o complete o transfer. Thereoisonoodocumentoshowingotrendierooffosharesoinothe RegisteroofoCompany,owhichoisoaoconclusiveoproofoof transferoofoshares.oTherefore,otheotransferoofosharesois notocomplete. C.o There o is o no o statutory o record o to o evidence o the shareholdingopatternoofoJointoVentureoCompanyoas claimedobyotheoBiddero (BMPL)oinoitsoJointoVenture Agreementodatedo15.04.2024. D.o Thereoisonoodocumentoshowingoactualotransferoof capitalo fromoM/soMaheshwarioMiningoPvt.oLtd,othe incomingoPromoter,oinofavouroofopromotersoofoM/s BarjoraoMiningoPvt.oLtd.,oi.e.oM/soAMPLo&oM/soGCL. E.o Asoperotheorecordoavailableoonodatedo15.07.2004oonothe websiteoofoRegistraroofoCompanieso(RoC),oM/soBarjora MiningoPvt.oLtdoisoaoCompanyocomprisingoofoonlyotwo Promoterso i.e.oM/soAmbeyoMiningoPvt.oLtd.o&oM/s. GodavarioCommoditiesoLtd. F.o TheoJudgmentsoreliedouponobyoM/soAMRoIndiaoPvt Ltd. o covers o the o case o in o hand.o Based o upon o these judgments,oitocanobeoconcludedothatoM/soBMPLoisonotoa JointoVentureoCompanyoasotheoinstrumentoofotransferois notoproper,owhichoisomandatoryostatutoryorequirement andotheotransferoofoshareoisonotocompleteoonoaccountoof theofactothatotheosameohasonotobeenoregisteredoinothe o /ence,o)$so3ar,orao)iningotivt"o+td"oisonotoao9oint @entureoCompanyoasostatedobyothem"oThus,obidoofo)$so3ar,ora )iningotivt"o+td"oisodeclaredonon;responsive" #ccordingly,otheoCommitteeodeemsoitoappropriate nototoodelveointootheofinancialoaspectsoofotheomatteroasoonothe totalityoofofactsoandocircumstances,otheo3idderodoesnBtofulfillothe mandatoryore>uirementoofobeingo9@Coasoperotheoconditions mentionedoino'*3"oConse>uently,otheobiddero)$so3)0+odoes noto>ualify": -234)ss) !so 'o&5eo6e%r!edo( 2!se6o' ro&5eo7e&)&) !er

¶12The learned counsel for the petitioner submits, that the impugned order dated 30.08.2024, as communicated on 31.08.2024, rather is unsustainable in law inter alia on the following grounds:

¶13(a) The TEC has not decided the issues raised by the writ petitioner in the earlier Writ Petition No.16923 of 2024, rather it has culled out new issues and had adjudicated the same without even providing an opportunity to the writ petitioner to rebut the same. The (supra) is submitted to be totally beyond the order passed by this Court, on 22.08.2024 besides in derogation theretos.

(b) The TEC has wrongly held that the petitioner is not a Joint Venture Company, by incorrectly holding that the shares of the original promoters (M/s Ambey Mining Private Limited, M/s Godavari Commodities Limited) rather remaining not transferred onto the accounts/share holdings of the incoming promoter (M/s Maheshwari Mining Private Limited) nor therebys any valid JVC coming into existence. Moreover, it has been CWP-23710-2024 -:- o incorrectly stated that SH4 Form has been changed vide notification

04.05.2022 (Annexure P?16).

¶14The TEC has relied upon documents beyond the bid document filed by the petitioner and the pleadings contained in the Writ Petition/ Written Statement/ Replication. The impugned order has been passed in undue haste and violates the Wednesbury's Principles thus encapsulating the norm of reasonableness in executive decision making.

¶15The written submissions, Judgments and other documents submitted by respondent No.3, were never supplied to the petitioner nor any opportunity to rebut the same became granted to it. The official respondents did not issue any notice in terms of Clause 8, thus for any deficiency in the petitioner's bid after this Court remanded the matter for a fresh decision by respondent No. 2.

¶16The Consultant M/s AXΥΚΝΟ Capital Services Private Ltd. again participated in the proceedings of the Tender Evaluation Committee. The Consultant does not find mention in the Notice inviting Bids (NIB) as part of the TEC. In the earlier proceedings, only the Consultant had raised objections.

¶17The TEC has not considered the Share Holding Certificate of the petitioner attested by the Statutory Auditors, but has permitted the unaudited financial statements of respondent No.3, and, other bidders as per Annexure R?1, appended with the Written Statement, wherebys, the impugned order of the TEC is vitiated for want of opportunity being o afforded to the petitioner and is thus violative of the principles of natural justice. I!'ere!(eso 'o&5)soC 2r&

¶18The moot question before this Court is whether M/s MMPL thus is a valid promoter in terms of clause 4 of NIB or whether it became validly inducted into a pre?existing JVC?Barjora Mining Pvt. Ltd. (BMPL) comprising of M/s Ambey Mining Private Limited, M/s Godavari Commodities Limited, besides whether merely for any purported want of valid transfer of shares by the original promoters i.e. M/s Ambey Mining Private Limited, M/s Godavari Commodities Limited, onto the incoming promoter i.e. M/s MMPL, whether therebys the rejection of the JVC, thus is legally sustainable.

¶19In this regard, it is relevant to extract the definition of Bidder/Bidding Company, which is embodied in clause 2.1.9 of the NIB. The hereinafter clause embodies the apposite qualifying condition for participation in the tender process. The said clause becomes hereinafter extracted. "("-"C"o"3idder$3iddingoCompany:oshallomeanotheoentityowhich hasosubmittedoaobidoagainstothisoTender,owhichorefersotooSole 3idder$SingleoCorporateoEntity,ooroao3iddingo1roupoofotwo CorporateoentitiesooroaoConsortiumoofoupotootwooCorporate Entitiesoor o&ointo'entureoCompan(oincorporatedounderothe applica)leola1s3o whooundertakeotooformoaotiro,ectoCompany S0@!oincorporatedounderotheoapplicableo*ndiano+awsoprioroto theoexecutionoofotheoCoalo)iningo#greementothatohasosubmitted I attest to the accuracy and aotiroposaloinoresponseotootheo&%3$3ido?ocument": o

¶20Moreover,oclauseo4.0oofotheoNIBomandateso26%oequityoinotheoJV company.oTheorelevantoclauseo4.0obecomesoextractedohereinafter. "4.0oJointoVentureo(IV)oCompany IfotheoBidderoisoaoJointoVentureoCompanyoandotheoQualifying Requiremento(QR)oisometobyooneoofotheoPromoteroorojointlyoby moreothanooneoPromoter,othenoeachoPromoteroonotheobasisoof whom,otheoJointoVentureoCompanyogetsoqualifiedoshallohaveoa minimum o of o 26% o equity o in o the o IV o Company o and o such promoter(s)oshallogiveoanoundertakingotooholdotheosaidoequity foroaoperiodotillotheomineoachieveso85%oofotheocontracted capacityoofotheoProjecto("ContractedoCapacity"omeanso3.00 millionoTonsoofoCoaloperoannum)."

¶21Theodocumentaryoevidenceoandootherocommonoconditionsoofothe NIBoalsoobecomeoextractedohereinafter. "6.0oDocumentaryoEvidenceorequiredotoobeofurnishedobyothe bidder:

6.1oTheoDocumentaryoEvidences,oinosupportoofosatisfyingothe Qualifying o Requirements o shall o be o submitted o online.

6.2oForotheoTechnicaloCriteria,oinocaseoaoBidderoisoseeking qualificationoasoaomineocontractor/oMDOoworkingounderoa contract,otheoBidderoshallosubmitonotarizedocopyoofotheocontract andoaocertificateofromotheoMineoowner,ocertifyingotheodetailsoof theooverburdenoandocoal/oligniteo/anyootheromineralsoproduction achievedoduringotheoQualifyingoperiodo(consecutiveo365odays) asoinoPQRoandotheodevelopmentoandoexplorationoactivities undertakenobyotheoBidderoforomeetingotheoTechnicaloCriteria.oIn addition,oWorkocompletionocertificate(s)ofromotheoMineoowner forowhomotheoexcavationoworkohasobeenoexecutedoshallobe 2025.04.09 10:18 submitted. o

6.3oInocase,oaoBidderoisoclaimingominingoexperienceowhereoitois operating/operatedoasopartoofoaoconsortiumooroaojointoventure, theobidderoshalloalsoosubmitoaocopyoofotheoconsortiumoagreement orojointoventureoagreemento(asotheocaseomayobe),owhichoclearly spellsooutotheoextentoofoitsoownershipoinosuchoconsortiumoorojoint venture,oasotheocaseomayobe.

6.4oEatotheoFinancialoCriteria,otheoBidder/eachomemberoofothe consortiumo/ojointoventureocompany/oDirectoHolding/oSubsidiary Company o on o whose o strength o the o Bidder o is o meeting o the Financial o criteria, o shall o submit o Audited o Annual o Reports, containingoProfitoandoLossoStatementoandoBalanceoSheetsofor immediatelyoprecedingothreeofinancialoyears.oInocaseotheoaudited resultoofotheolastofinancialoyearoisonotoavailable,otheounaudited financialostatementsoshouldobeocertifiedobyoitsoStatutoryoAuditor.

6.5oBidder,owhoomeetsotheofinancialocriteriaoofoPre-Qualifying Requirements o on o the o strength/ o experience o of o its o Direct Holdingo/SubsidiaryoCompany,oshallobeorequiredotoofurnishoa legallyoenforceableoregisteredoand/oroNotarizedoJointoOperating Agreementoinooriginaloasoperoprescribedoformat.oFurtherothe BidderoisorequiredotoofurnishoLetteroofoUndertakingofromothe DirectoHoldingo/oSubsidiaryoCompany,osupportedobyoBoard Resolution,oasoproofoofopledgingounconditionaloandoirrevocable financialosupportoforotheoexecutionoofotheoContractobyothe Bidderoinocaseoofoaward.

6.6 o The o following o documents o in o Physical o forms o shall o be furnishedoinosealedocover:

(i)oDocumentaryoevidenceotowardsoremittanceoofocostoofoTender Documents.

(ii)oProofoofosubmissionoofoBidoGuaranteeoamounto/oEMD.

(iii)oRegisteredoand/oroNotarizedoPoweroofoAttorneyoasoper ITHLESH KUMAR Annexure-4ooro5,oasoapplicable. o iv!o#ocopyoofo9ointo@entureo#greement$Consortiumo#greement, asoapplicable" v! o &egistered o and$or o 'otari.ed o Consortium o Hperating #greementoasopero#nnexure;F,oasoapplicable" vi!o&egisteredoand$oro'otari.edo9ointoHperatingo#greementoas pero#nnexure;Coando+etteroofoundertaking,oasoapplicable" vii!o&egisteredoand$oro'otari.edo#ffidavitoasopero#nnexure; -6":

¶22Now exofacie, the petitioner has inaptly construed qua "Joint Venture Agreement", thus tantamounting to "Joint Venture Company" besides ex facie also therebys misconstrued, that merely therebys, thus even for want of the company nomenclatured as 'M/s MMPL, rather acquiring the requisite certification of incorporation or certification of amalgamation onto the pre?existing JVC comprising of (M/s Ambey Mining Private Limited, M/s Godavari Commodities Limited), thus purportedly therebys alone, the bid condition appertaining to the bidding group of two corporate entities or joint venture company incorporated under the applicable norm, thus yet becoming satiated.

¶23The reason for concluding so becomes garnered, from the factum, that the "Joint Venture Agreement", exofacie, unless the hereafter statutory conditions become accomplished, rather is outside the contours of the mandatory provisions enclosed in Section 56 of the Companies Act, 2013, provisions whereof become extracted hereinafter. "56$oTransferoandotransmissionoofosecurities$o -!o#ocompany shallonotoregisteroaotransferoofosecuritiesoofotheocompany,oorothe ITHLESH KUMAR interestoofoaomemberoinotheocompanyoinotheocaseoofoaocompany o having onoo shareo capital,o othero than otheotransfero between persons o both o of o whose o names o are o entered o as o holders o of beneficialointerestoinotheorecordsoofoaodepository,ounlessoa proper o instrument o of o transfer, o in o such o form o as o may o be prescribed,odulyostamped,odatedoandoexecutedobyooroonobehalfoof theotransferoroandotheotransfereeoandospecifyingotheoname, addressoandooccupation,oifoany,oofotheotransfereeohasobeen deliveredotootheocompanyobyotheotransferoroorotheotransferee withinoaoperiodoofosixtyodaysofromotheodateoofoexecution,oalong withotheocertificateorelatingotootheosecurities,ooroifonoosuch certificateoisoinoexistence,oalongowithotheoletteroofoallotmentoof securities: Providedothatowhereotheoinstrumentoofotransferohasobeen lostoorotheoinstrumentoofotransferohasonotobeenodeliveredowithin theoprescribedoperiod,otheocompanyomayoregisterotheotransferoon such o terms o as o to o indemnity o as o the o Board o may o think o fit. Xxx

(6)o Where o any o default o is o made o in o complying o with o the provisionsoofosub-sectionso(1)otoo(5),otheocompanyoshallobe punishableowithofineowhichoshallonotobeolessothanotwenty-five thousandorupeesobutowhichomayoextendotoofiveolakhorupeesoand everyo officer o of o the o companyo who o is o in o defaulto shallo be punishableowithofineowhichoshallonotobeolessothanotenothousand rupeesobutowhichomayoextendotoooneolakhorupees."

¶24Furthermoreoalso,otheosaidoagreementocannotobeotermedotoobeothe statutorily o contemplated o methodology, o thus o for o making o the o company nomenclatured o as o the o M/s o MMPL, o to o become o construed o to o become incorporated/amalgamatedointootheopreoexistingocompanies,ocomprisedoof M/soAmbeyoMiningoPrivateoLimited,oM/soGodavarioCommoditiesoLimited. I attest to the accuracy andResultantly,oirrespectiveoofotheosaidobesidesoirrespectiveoofotheoformodetailing o thereins, the transfer of the requisite equity shares by the original promoters nomenclatured as M/s Ambey Mining Private Limited, M/s Godavari Commodities Limited, thus onto the accounts of the incoming promoter M/s MMPL, thus there was no valid apposite incorporation of M/s Maheshwari Mining Pvt. Ltd. Moreover, nor merely therebys the (supra) purportedly forming part of the joint venture/company comprising of M/s Ambey Mining Private Limited, M/s Godavari Commodities Limited, despite want, of the relevant certificate of incorporation or certificate of amalgamation becoming issued by the Registrar of Companies, besides nor therebys alone, thus occurring the apposite valid transfer of shares, nor therebys the supra underlined bid condition, inasmuch as, "Joint Venture Company incorporated under the applicable laws", becoming satiated.

¶25The supra inference becomes further strengthened, from a bare perusal of Section 108 of the Companies Act, 1956, provisions whereof are pari materia with the provisions borne in Section 56 of the Companies Act, 2013, whereunders, becomes enjoined a mandatory process qua the transfer of shares, wherebys, there would be a valid induction of the apposite company onto the pre existing companies whereintos any amalgamation is made. The said is recognized but only on completion of the hereinafter extracted processes.

(i) Execution of valid Form SH?4 between transferor and transferee is the first mandatory condition.

(ii) Such document is a proper instrument of transfer as o

(iii)oItoshouldobeodulyostamped,odatedoandoexecutedobetween transferoroandotransfereeowithospecificodateoofoapproval,oregister no.oetc.oalongowithoenclosures.

(iv)oItohasotoobeodeliveredotootheocompanyowithino60odaysofrom theodateoofoitsoexecution.

(v) oItoshouldobeoaccompaniedowithocertificateorelatingotoothe securityooroalongowithotheoletteroofoallotment.

(vi)oTransferoisotoobeoformallyoacceptedobyotheocompanyobyoway ofoaoresolutionoandothenobyowayoofoincorporatingotheosameoinothe register.oThisofactoisoalsooevidentofromotheobyeolawsoofothe company, o relevant o portion o whereof o becomes o extracted hereinafter. "19.o(i)oTheoinstrumentoofotransferoofoanyoshareoinothe companyoshallobeoexecutedobyooroonobehalfoofobothothe transferoroandotransferee.

ii)oTheotransferoroshallobeodeemedotooremainoaoholderoof theoshareountilotheonameoofotheotransfereeoisoenteredoinothe registeroofomembersoinorespectothereof.

¶20oTheoBoardomay,o subjecto too theo right oofo appeal conferredobyosectiono58odeclineotooregister-

(a)otheotransferoofoaoshare,onotobeingoaofullyopaidoshare,oto aopersonoofowhomotheyodoonotoapprove;oor

(b)oanyotransferoofosharesoonowhichotheocompanyohasoa lien.

21.oTheoBoardomayodeclineotoorecognizeoanyoinstrumentoof transferounless-

(a)otheoinstrumentoofotransferoisoinotheoformoasoprescribed inorulesomadeounderosub-sectiono(1)oofosectiono56;

(b)otheoinstrumentoofotransferoisoaccompaniedobyothe certificateoofotheosharesotoowhichoitorelates,oandosuch o otheroevidenceoasotheo3oardomayoreasonablyore>uireoto showotheorightoofotheotransferorotoomakeotheotransferJoand c!otheoinstrumentoofotransferoisoinorespectoofoonlyoone classoofoshares":

¶26Naturally besides reiteratedly, based upon the above provision and the bye laws, it is clear that the petitioner has evidently not submitted any valid document regarding transfer of 26% shares. Initially and subsequently also what was sent to the respondent concerned, was only the SH?4. Moreover, a bare perusal of the stand of the petitioner, reveals that it became asserted that the apposite transfer can be done upto 30th September (i.e. the date of conducting of AGM).

¶27Tritely also, none of the hereinabove extracted conditions wherebys there would be a valid transfer of shares onto the accounts of the transferee company become revealed to be satiated. Moreover, especially when the rule ordained qua the coming into existence of an instrument of transfer duly stamped, and naturally executed between the transferor and transferee, besides with thereins also becoming spoken that the specific date of approval, registration no. etc. alongwith enclosures, whereafter, it was to be delivered to the company concerned, within 60 days from the date of its execution, besides subsequently the same being also required to become accepted by the apposite company through a resolution, becoming passed and whereafter the same becoming imperatively incorporated in the Register. All the (supra) though required to becoming completely satisfied. However, when all supra evidently remained un?satiated. Therefore, for want of I attest to the accuracy andcompliance being made to the supra statutory requirements, there was but no o valid transfer of the ordained/requisite shares by the original promoters i.e. M/s Ambey Mining Private Limited, M/s Godavari Commodities Limited onto the accounts of the incoming promoter/company i.e. M/s MMPL.

¶28However, while considering the supra grievance of the petitioner, it was specifically pointed out to the petitioner, by the respondent concerned, that Form SH?4 cannot be construed as a valid document of transfer and reference was also made to the dates referred therein i.e.

30.3.2024. The only response theretos given by the petitioner was by way of oral and written submissions.

¶29As such, reiteratedly, for all the supra mandatory conditions, thus for the supra stated reasons rather remaining unsatisfied, therebys, M/s MMPL cannot be considered as promoter of BMPL Joint Venture company. Emphatically, in the absence of valid 26% transfer of shares, besides especially in view of the well settled principles of law, as, embodied in judicial pronouncements, to the effect that SH?4, may be construed as binding between the transferor and transferee, but subject to the mandatory statutory provisions supra becoming also fully complied with. Since for the above stated reasons, the mandatory statutory provisions remain uncomplied with, therefore, SH?4 pales into insignificance.

¶30Furthermore, in the record submitted by the BMPL, though it is shown that AMPL and GCL respectively, has transferred 03% and 23% of their shares in favour of MMPL, but no record of actual transfer of capital has been provided by the bidder at the time of the making of the bid or at the CWP-23710-2024 -1:- o time when clarifications were sought before opening the bid nor the requisite ordained (supra) instrument of transfer became ever placed on record.

¶31In consequence, the claim of the petitioner, that BMPL is a Joint Venture Company, thus comprising of three promoters namely; (1) Ambey Mining Private Ltd. (AMPL), (2) Godavari Commodities Ltd. (GCL) and (3) Maheshwari Mining Private Ltd. (MMPL), and, is eligible for submitting technical and financial bid as per the provisions of the Notice Inviting Bid

(NIB) but was required to be rejected.

¶32In aftermath, there is no merit in the instant writ petition, and, the same is dismissed.

¶33Since the main case itself has been decided, thus, all pending application(s), if any, are disposed of as such. oo ooooooooo8-URE-HWARoTHA.UR9 ooooJUDGE 03#04#202$ oooooooo8/I.A-o-URI9 I&56es5:;%v!ee& oo oooooJUDGE W5e&5eros7e%;)!<:re%s !ed"-o Yes:N W5e&5erore7 r&%36e"o Yes:N