Judgment : These applications are disposed of by this common order. 2. Thefacts and circumstances as urged by the respective parties may briefly be stated as follows. In company application C.A. No. 860 of 2008 it is contended thus: Three Companies, namely, M/s. Deccan Aviation Limited (hereinafter called `DAL'), M/s. Kingfisher Airlines Limited (hereinafter called 'KAL') and M/s. Deccan Charters Limited (hereinafter called `DC/) had together sought the sanction of a Composite Scheme of Arrangement under Section 391 and other provisions of the Companies Act, 195G (hereinafter called the `Act'), by this Court. The scheme was duly sanctioned by an order dated 16-6-2008. The object of the Scheme was the consolidation of two commercial airline businesses in a single entity to achieve greater competitive business in the scale and scope of operations. And in order to optimise costs and achieve operational synergies. In terms of the scheme, the applicant-DAL is now known as KAL. 3. It is stated that between January 2008 and July 2008 the price of crude oil in the international market rose from US $ 88 per barrel to US $ 140. This increase in price of crude oil had a direct impact on the price of aviation turbine fuel and consequently affected the aviation industry all over the World, including the applicant. In that, there was a marked decline in the number of passengers travelling by air. It is standard practice in the aviation industry to procure air-craft on lease, from leasing companies. M/s. GE Commercial Aviation Services Limited (hereinafter referred to as ‘GECAS'), respondent 1 in the above application, had, through its subsidiary, respondent 2, leased two Air-bus 320 aircraft (identified by Manufacturer Serial Nos. 2029 and 2077) in the year 2005, to the applicant. GECAS had, as lease manager for respondents 3 to 6, leased two more Airbus 320 Aircrafts (MSN 3183 and 3219) to the applicant. (All these respondents are together, refereed to as the “GECAS group”). United Breweries (Holdings) Limited (UBHL) is said to be the holding company of the UB Group of Companies, and the main promoter of KAL, had acquired 46% - of the paid-up share capital of the applicant and had invested over Rs. 1,000 crore in the applicant. (All these respondents are together, refereed to as the “GECAS group”). United Breweries (Holdings) Limited (UBHL) is said to be the holding company of the UB Group of Companies, and the main promoter of KAL, had acquired 46% - of the paid-up share capital of the applicant and had invested over Rs. 1,000 crore in the applicant. It is stated that even prior to the UB Group participating in the management of the applicant, the four aircraft referred to above were on lease to the applicant through GECAS. And GECAS had no objection to the Composite Scheme of Arrangement as per letter dated 10-4-2008. 4. It is contended that after the applicant was renamed as KAL, GECAS brought relentless pressure in respect of delays in payments including threats to terminate the leases and claim damages. It however, transpires that it was assured by representatives of GECAS that leases on two of the aircraft, namely, MSN 2029 and MSN 2077 would be prematurely terminated without penalty or damages for loss, while it continued to protect its staid legal position in the written correspondence, on the other hand. Acting on the oral assurances on GECAS’ bargain, of an amicable termination of the two leases, in variance with the lease agreements, the applicant had despatched the aircraft MSN 2029 to the manufacturer, Pratt and Whitney, Christchurch, New Zealand for maintenance. According to the applicant the cost of such maintenance was to be paid by GECAS from out of the “Maintenance Reserves with GECAS. When the invoice raised by Pratt and Whitney in this regard was presented to GECAS — the amounts were not released — and it is stated that GECAS unilaterally reneged from its agreement of mutually terminating the leases in respect of aircraft MSN 2029 and MSN 2077. 5. On the other hand, GECAS group issued Grounding Notices in September 2008 in respect of all four of the above aircraft alleging delay in payment of lease rentals and maintenance reserves and grounded the four aircraft thereby preventing the applicant from operating the same, throwing its operations into disarray. Further, on 2-10-2008 GECAS had issued notices terminating all the four leases and had simultaneously filed claims before the Queens Bench Division, Commercial Court, Royal Court of Justice in London, for a declaration that there has been a valid termination of the lease, for possession of the aircraft and for damages etc. Further, on 2-10-2008 GECAS had issued notices terminating all the four leases and had simultaneously filed claims before the Queens Bench Division, Commercial Court, Royal Court of Justice in London, for a declaration that there has been a valid termination of the lease, for possession of the aircraft and for damages etc. This according to the applicant would have serious ramifications not only in the implementation and proper working of the scheme but also upon the entire aviation industry in the country, having regard to the substantial percentage of its share of the business in India. It is stated that the applicant has 88 aircraft in its fleet. Knowing the crisis that has beset the aviation industry no other lessor of the aircraft of its fleet have chosen to take the drastic steps as has GECAS. The solitary action of GECAS would result in creating a run on the applicant by other lessors who have till now been sympathetic to the grain situation faced by the applicant. It was hence contended that if the aircraft were repossessed, giving effect to the termination of the leases. the very working of the scheme would be affected and the scheme itself would be rendered unworkable, within months of its sanction by this Court. It is in this background that the above application was filed seeking an order restraining the respondents from taking any steps to deregister or repossess the four aircraft above named amongst other incidental reliefs. 6. This Court on hearing the applicant as on 31-10-2008, prima fade opined that the fleet of aircraft of the applicant formed the very sub-stratum of its airline business and without sufficient number of aircraft it would not be in a position to function and in order to further the object of the Composite Scheme of Arrangement, which had been duly approved, granted an ex parte order restraining the respondents from taking any coercive action with regard to the aircraft, particularly when respondents 1 to 6 had, by invocation of letters of credit, come into the proceeds thereof which were sufficient to cover arrears of rentals and other claims that may have been due from the applicant. It was also made clear by this Court that the ad interim order would remain in force till the respondents sought modification of the same. It was also made clear by this Court that the ad interim order would remain in force till the respondents sought modification of the same. Respondents 1, 2, 4 and 6 having learnt from newspaper reports of the above application have chosen to file company application in CA No. 888 of 2008 to counter CA No. 860 of 2008 and to seek vacation of the ex parte interim order dated 31-10-2008. 7. It is contended therein that KAL and the respondents have entered into Aircraft Specific Lease Agreements (ASLA) in respect of each aircraft. And also Aircraft Lease Common Terms Agreements (CFA), the terms of which are incorporated by reference into the ASLA's above referred, in respect of each aircraft. Respondent 1 is the lease Manager of all the ASLA’s. The CTA's are all similar in material respects. The differences lie in the names of the parties, payment details and uniqueness of the aircraft. Defaults were committed by KAL from time to time after leasing of the aircraft. On 20-3-2008 the respondents had issued a notice of event of default as a result of non-payment of US $ 872,411.27 in respect of aircraft MSN 3183 and 3219. On 31-3-2008, another notice followed in relation to all four aircraft for non-payment of US $ 803,627.20. 8. On 31-3-2008, the respondents received intimation of the proposed Composite Scheme of Arrangement. The respondents had after the receipt of dues outstanding and on the assurance that the proposal would not affect the rights of the respondents and no sacrifice or waiver was called for from the respondents, they had issued the requisite “No Objection” letters to the proposed scheme. Clause 27 of the Explanatory statement appended to the Scheme of Arrangement is an express assurance in this regard. Subsequent to the sanction of the scheme by this Court, there were repeated defaults on the part of KAL in meeting its contractual obligations insofar as payments were concerned -- resulting in the respondents placing the KAL on notice of the grounding of aircraft on account of non-payment through the months of July, August and September 2008. Finally, KAL had paid a sum of US $ 10,00,000 leaving an outstanding of US $ 13,48,235. This amount remained unpaid — inspite of further notices. Finally, KAL had paid a sum of US $ 10,00,000 leaving an outstanding of US $ 13,48,235. This amount remained unpaid — inspite of further notices. As on 29-9-2008 the outstanding amount was US $ 16,43,235 — since KAL did not make payment despite a grounding notice dated 28-9-2008 to respondent 7, Notices of termination of leases of all the four aircraft, dated 2-10-2008 is said to have been issued. Simultaneously, a civil action was instituted before the Queens Bench Division, Commercial Court, Royal Court of Justice in London. It is stated that the Solicitors appointed by KAL in respect of the above case had exchanged correspondences with the Solicitors of the respondents between 5-10-2008 and 22-10-2008 and that KAL had, at a meeting on 16-10-2008, agreed to return all four aircraft. But in a volte face has approached this Court in CA No. 860 of 2008, which is a clear abuse of process of Court. 9. It is contended that the scheme of arrangement filed by KAL was for transfer of non-scheduled air transport services of DAL to DCL and de-merger of Scheduled Air Transport Services (Passenger) undertaking of KAL into DAL on a `going concern' basis and a consequent reduction of share capital and/or securities premium of KAL/DAL. This scheme has been completely implemented as on 5-9-2008. The scheme did not relate to any arrangement with any creditor, nor a reconstitution of any contract or rearrangement with any subsisting creditor. Therefore, the provisions of Section 392 of the Act has no relevance to the termination of leases and consequent exercise of its contractual rights. It is further emphasised that KAL is bound by the Common Terms Agreement (CTA) to submit all disputes in relation to the leases to the exclusive jurisdiction of the Courts of England and such proceedings admittedly are initiated by the respondents. Except a passing reference to the same in the company application by KAL, material facts including the details of the claims, they correspondence exchanged between Solicitors for the parties and particularly the minutes of meeting held on 16-10-2008 has been suppressed, therefore KAL has perpetrated fraud on this Court. The basis of the application in CA No. 860 of 2008 with reference to alleged oral assurances by representatives of the respondents are stated to be false and are denied. The basis of the application in CA No. 860 of 2008 with reference to alleged oral assurances by representatives of the respondents are stated to be false and are denied. It is contended that there is no concept of “maintenance reserves” contemplated under the agreements and that it is false that the respondents have defaulted in payments. Further, the invocation of Letters of Credit furnished by KAL in pursuance of the agreements which are in the nature of Security Deposits have merely been encashed as security payment towards nonpayment of rent and other amounts that have become due and may be found to be due. The total amount of security thus held US $ 47,14.000. 10. Pursuant to the respondents entering appearance through Counsel and the applications being listed for orders before this Court on 21-11-2008, it was stated that aircraft MSN 2077 and MSN 3219 had been returned to the respondents and that steps were being taken to return aircraft MSN 3183. By 26-11-2008 the same had also been returned to the respondents. The other aircraft namely MSN 2029 is awaiting its engines which are at Christchurch New Zealand pending resolution of the dispute regarding payment of maintenance charges payable to the manufacturers by the parties. 11. KAL, by way of reply, has contended that in view of the totally unforeseen circumstances of a global financial crisis and in the wake of the scheme having been sanctioned it would be necessary for third parties such as the respondents to co-operate with the applicant in making the scheme workable in order to weather the present global economic crisis. In that, in order to protect the interest of over 55,000 of public share holders of KAL and the employment of 8,000 employees and in public interest it is claimed that the scheme ought to be made workable. And in the face of the circumstance that GECAS had agreed for mutual termination of the agreements in regard to MSN 2077 and 2029 and later in respect of MSN 3183 and 3219 — the rights and liabilities of GECAS are that of a “creditor” under the Act and Scheme. Therefore, the action of GECAS now rendering the scheme unworkable would bring the matter within the jurisdiction of this Court. 12. Insofar as the contention as regards the institution of the claims before the English Court is concerned, KAL would contend as follows. Therefore, the action of GECAS now rendering the scheme unworkable would bring the matter within the jurisdiction of this Court. 12. Insofar as the contention as regards the institution of the claims before the English Court is concerned, KAL would contend as follows. (a) Theproceedings are not brought by all the parties to these proceedings. Neither GECAS nor respondents 3 and 5 are parties to the same. (b) Parties have negotiated and an agreement is concluded, even as late as on November 12, 2008, in respect of the future course of action, whereas the English Court proceedings were instituted on 2nd October, 2008. (c) GECAS has completely suppressed the negotiations in September 2008 as regards mutual termination of leases resulting in a novation of contract, in the proceedings before the English Court. (d) As a result of the bargain struck during September and November 2008 as regards mutual termination of the agreements, in variance with the express terms of the lease agreement, the relationship of the parties is squarely that of Creditors and Debtor. And the dispute which would have a direct bearing on the achievement of the object of the scheme sanctioned by this Court would squarely fall within the jurisdiction of this Court. (e) The provisions in the lease agreements as regards reservation of jurisdiction of Court have perished with the novation of the contract agreeing for mutual termination in the changed scenario and therefore are not material. The provisions cannot be likened to an arbitration clause in an agreement. (f) The applicant-KAL, is before this Court to restrain GECAS who are creditors from claiming amounts in excess of those agreed to pursuant to negotiations in September through November, which if not restrained would render the scheme unworkable. As any other creditor can similarly defeat the scheme by contending that a claim or dispute falls outside the scope of the scheme. The applicant-KAL has elaborated on the particulars of negotiations resulting in purported agreements on mutual termination agreement in respect of the aircraft, in variance with the lease agreement. 13. KAL has filed yet another application in CA No. 893 of 2008. The applicant-KAL has elaborated on the particulars of negotiations resulting in purported agreements on mutual termination agreement in respect of the aircraft, in variance with the lease agreement. 13. KAL has filed yet another application in CA No. 893 of 2008. This is to further supplement the reliefs sought in CA No. 860 of 2008 and in support of the same, the facts and circumstances are further elaborated to seek orders of this Court to declare that the several Aircraft Specific Lease Agreements and the Aircraft Lease Common Terms Agreements pertaining to the above named aircraft between the applicant (KAL) and GECAS are mutually terminated and that on adjustment of the amounts payable by the applicant in consonance with agreements arrived at during September 2008 and November 2008, KAL stands discharged from all its obligations under each of the ASL and CTA agreements. 14. It is contended that upon this Court sanctioning the Scheme of Arrangement of the applicant as per order dated 16-6-2008, the applicant is said to have expressed its desire to determine the agreements of lease respecting Aircraft MSN 2029 and MSN 2077, on mutually agreed terms. This according to the applicant has been confirmed by GECAS as per an e-mail dated 3-7-2008. This was followed by further discussions as between representatives of the applicant and GECAS at Bangalore, Mumbai, Delhi and Singapore. The negotiations are said to have culminated into an agreement on 18-9-2008 in respect of the above two aircraft, on the following terms and conditions: (i) Aircraft MSN 2029 The applicant would pay to GECAS US $ 267000 plus equivalent of 23 days' rental (US $ 226167) in full discharge of its obligation to put the aircraft in `redelivery condition'. GECAS would pay from out of the collection of “Supplemental Rent” with it US $ 1671695 to M/s. Pratt and Whitney towards its invoice for the repairs to the Engine No. VII 582 of the aircraft and the applicant would pay the balance of US $ 395,990. For repairs to Engine No. VII 475 the invoice of Pratt and Whitney would be paid upto the amount payable out of the collection of Supplemental Rent by GECAS and any amount in excess would be paid by the applicant. After fitting the engines the applicant would ferry the aircraft to the agreed delivery location to be handed over to GECAS and for de-registration. After fitting the engines the applicant would ferry the aircraft to the agreed delivery location to be handed over to GECAS and for de-registration. (ii) Aircraft MSN 2077 It was agreed to pay GECAS US $ 286000 plus equivalent of 23 days’ rental US $ 226167 in discharge of its obligation to put the aircraft in `redelivery condition’. The aircraft was to be ferried to an agreed location to be handed over to GECAS. The applicant was to pay rentals accrued until the aircraft was so handed over. The above was, according to the applicant the “September Agreement”. However, in breach of the same — GECAS is said to have instituted proceedings in QB Division, Commercial Court, Royal Court of Justice, London on 2-10-2008 after a purported unilateral termination of all the agreements of lease. Notwithstanding this, it is contended that there was a further concluded agreement amongst the parties on 12-11-2008. In that, GECAS had continued negotiations for aircraft MSN 3183 and MSN 3219. The applicant had, pursuant to the English Court proceedings offered to put up an amount of US $ 1643023 in escrow with their London Solicitors towards the claim of GECAS - which was not accepted and on the other hand, it proceeded to invoke the letters of credit held by it in a total amount of US $ 4514000. This was in addition to cash deposits of US $ 200000 held by GECAS. Thus a total amount of $ 4714000 has been adjusted by GECAS to the detriment of the applicant. Under the grave apprehension of further drastic misuse of the power of attorney given by the applicant in favour of GECAS which could have enabled GECAS to approach the Director General Civil Aviation to de-register the aircraft - the applicant had approached this Court in CA No. 860 of 2008. It was in order to demonstrate its bona fides at the ongoing negotiations, inspite of the drastic action of GECAS, that the applicant flew out two of four aircraft to Malaysia on 10-11-2008 - which filet was brought on record before this Court. It is stated that on 11-11-2008 the applicant ferried MSN 3219 to Malaysia and on 12-11-2008 the applicant had ferried MSN 2077 to Malaysia. 15. It is stated that on 11-11-2008 the applicant ferried MSN 3219 to Malaysia and on 12-11-2008 the applicant had ferried MSN 2077 to Malaysia. 15. It transpires that as on 11th and 12th November, there were constant discussions as between the representatives of GECAS and the applicant as regards an amicable settlement insofar as aircraft MSN 3183 and MSN 3219 as well, on the same terms as in the September agreement except that the rental payable was US $ 200000 for each of the aircraft plus equivalent rent for 23 days for each aircraft. This was confirmed by representatives of GECAS who also had agreed to appropriate and set off the sum of US $ 4714000, being the draw down under the letters of credit, towards the said rentals and the surplus being adjusted towards agreed amounts of compensation in discharge of the applicant's obligations. However, GECAS has completely reneged from the bargain struck and has chosen to assume an extreme stance of the dispute being irreconcilable and intends to pursue its drastic action of seeking to recover unjust sums towards unreasonable claims. It is in this background that the present application is filed. GECAS being a creditor and under the provisions of Section 391 of the Act, the sanctioned Scheme is binding on all the creditors including the GECAS group which is bound by directions as may be issued by this Court, as otherwise the Scheme will be rendered unworkable. 16. Opposing the application, it is contended by the GECAS group that the above application is an abuse of process of the Court. It is contended that the alleged reference to a “September Agreement” or a ‘November Agreement’ is wholly baseless and false. This is apparently borne out from the fact that the application in CA No. 860 of 2008 is totally silent about a “September Agreement”. There was no ground raised to that effect. The present application is merely filed in aid of a tactic to avoid a hearing and disposal of CA Nos. 860 and 888 of 2008. The applicant having handed over 3 aircraft and an order of this Court dated 21-11-2008 having permitted GECAS to deal with the same - a prayer in the present application seeking a restraint order from de-registration is wholly inconsistent with the applicant's conduct and the present circumstance. 860 and 888 of 2008. The applicant having handed over 3 aircraft and an order of this Court dated 21-11-2008 having permitted GECAS to deal with the same - a prayer in the present application seeking a restraint order from de-registration is wholly inconsistent with the applicant's conduct and the present circumstance. It is contended that this Court has no jurisdiction to entertain the application. The fact that GECAS group have given their consent to the implementation of the Scheme of Arrangement does not have the effect of taking away its rights under the lease agreements. 17. The applicant seeking to rely on exchange of e-mails as evidencing a novation of contract is not with reference to the complete correspondence. In this regard, GECAS has produced e-mails dated 19th and 23rd September, 2008, which, according to it, belie the concocted and false story of an alleged concluded “September Agreement”. There was no agreement and even if any such agreement was arrived at, it cannot be given effect to unless reduced to a formal document and duly signed in accordance with an express provision (Clause 15.9 of CTA) of the lease agreement. Even if such a contention is available to the applicant the same can be urged in the pending action in the English Court and is not material in these proceedings. It is also denied that there was any November Agreement, either. The allegations of GECAS seeking to unjustly enrich itself - as can be seen from the material on record that it was exercised its legitimate rights. The scheme has no effect on the rights of the applicant as a lessee. Nor can this Court adjudicate on the rights of the parties in the Aircraft Specific Lease Agreements and the CTAs. There is yet another application in CA No. 1081 of 2008 filed by KAL seeking a direction to GECAS to appropriate the sum of $ 4714000 as indicated by it in its e-mail dated 2-12-2008 and to continue the interim order dated 31-10-2008 of this Court in respect of aircraft No. MSN 2029 till such time that GECAS pays amounts payable to Pratt and Whitney according to the “September Agreement”. It is contended that GECAS is proceeding to appropriate the huge sum of $ 4714000 (Rs. It is contended that GECAS is proceeding to appropriate the huge sum of $ 4714000 (Rs. 23.57 Crores) for its own use unlawfully and in breach of the September and November Agreements which directly impact the workability of the Scheme sanctioned by this Court. It is contended that GECAS, Genesis Acquisition Limited and Genesis Lease Limited are not parties to any of the claims before the English Court. This is a fact suppressed by GECAS before this Court. The latter two entities who are parties before this Court are not represented. The suggestion by GECAS that the applicant ought to work out its rights as against GECAS in the proceedings before the English Court is not tenable. GECAS not being a party to the proceedings in the English Court there is no remedy against the appropriation of the sum equivalent to Rs. 23.57 Crores by GECAS. It is thus this Court which would be the appropriate forum to seek relief against GECAS a creditor, which is dealing with the money of the applicant unlawfully, when it ought to apply securities realised by it, as a creditor, in accordance with law. 18. Sri Udaya Holla, Senior Advocate appearing for the Counsel for KAL while reiterating the above contentions on behalf of KAL in the respective applications would contend as follows. The Composite Scheme of Arrangement of the applicant duly sanctioned by this Court envisages the consolidation of two scheduled airline businesses in a single entity to create a more competitive business, both in scale and scope of operations. This is intended to optimise costs and bring about revenue and capital synergies - resulting in enhancement of share value and to achieve operational synergies. To achieve these objects one of the immediate measures adopted was to prematurely terminate lease agreements and to return two of the aircraft namely, MSN 2029 and MSN 2077. In this regard, attention is drawn to the exchange of e-mails to be found at pages 436-439 (Exhibit Q) of the Paper book in CA No. 893 of 2008 to be read from Page 439 backwards) resulting in an agreement – “the September Agreement” — Whereby GECAS had, in variance with the lease agreements pertaining to these aircraft agreed to take redelivery of the same subject to the agreed terms and conditions. GECAS as lease manager ought to have honoured this agreement. GECAS as lease manager ought to have honoured this agreement. The status of GECAS being that of a creditor in the above circumstance is subject to the supervision and power of this Court under Section 392 of the Companies Act, 1956 to prevent the said creditor from acting contrary to the agreed terms in not only having invoked and enforced the entire security furnished, apart from appropriating cash deposits, totaling over $ 4.7 million and seeking to forcibly repossess the aircraft by recourse to proceedings before the English Court, through the lessors, has required KAL to approach this Court as the above acts of GECAS would not only render the Scheme unworkable but prompt other lessors, of aircraft comprising its fleet, to seek premature redelivery on a misapprehension of the applicant's creditworthiness. 19. It is contended that the power of this Court under Section 392 of the Act is of the widest amplitude and is to be exercised to remove all and any difficulties or obstacles that may impede the proper working of the Scheme of Arrangement. The only limitation on his power is that any direction issued, must only be to ensure the proper working of the scheme. In the present circumstance if GECAS, who is a creditor of the company is not checked, the very existence of KAL is at stake and would completely defeat the scheme sanctioned by this Court, within months of its implementation. 20. It is further contended that material placed on record would indicate that KAL has relentlessly pursued its attempt at an amicable settlement insofar as the bargain to redeliver the aircraft on payment of applicable rentals and other charges in accordance with the September agreement and pursuant to further negotiations on November 11th and 12th, 2008, in respect of the remaining aircraft, culminating in an agreement even during the pendency of these proceedings. This requires GECAS to adjust the amounts agreed to be paid from out of the amounts drawn down, after invoking the letters of credit furnished by KAL, in addition to cash deposits. The lease agreements which thus stand varied in furtherance of cost-cutting measures envisaged under the Scheme of Arrangement - it is appropriate that this Court place GECAS on terms as prayed for and grant other reliefs. Reliance is placed on a large number of authorities in support of the case of KAL. The lease agreements which thus stand varied in furtherance of cost-cutting measures envisaged under the Scheme of Arrangement - it is appropriate that this Court place GECAS on terms as prayed for and grant other reliefs. Reliance is placed on a large number of authorities in support of the case of KAL. (a) J.K. (Bombay) Private Limited Vs New Kaiser-I-Hind Spinning and Weaving Company Limited and Others AIR.1970 SC 1041 : (1969)2 SCR 866 : “Under Section 392 of the Act the High Court which has sanctioned the scheme has the power to supervise the carrying out of it and to give directions in regard to any matter or to make modifications in it as it may consider necessary for its proper working. The principle is that a scheme sanctioned by the Court does not operate as a mere agreement between the parties: it becomes binding on the company, the creditors and the shareholders and has statutory force. By virtue of the provisions of Section 391 of the act, a scheme is statutorily binding even on creditors and shareholders who dissented from or opposed to its being sanctioned. It has statutory force in that sense and therefore cannot be altered except with the sanction of the Court even if the shareholders and the creditors acquiesce in such alteration. (Premila Devi v Peoples Bank of Northern India Limited, (1938)4 All ER 337). The effect of the scheme is “to supply by recourse to the procedure thereby prescribed the absence of that individual agreement by every member of the class to be bound by the scheme which would otherwise be necessary to give it validity’. (Palmer’s Company Law, 20th Edition, 664)”. (b) S.K. Gupta and Another v K.P.Jain and Another AIR 1979 SC 734 : (1979)3 SCC 54 : “The purpose underlying Section 392 is to provide for effective working of the compromise and/or arrangement once sanctioned and over which the Court must exercise continuous supervision (see Section 392(1)), and if over a period there may arise obstacles, difficulties or impediments, to remove them, again, not for any other purpose but for the proper working of the compromise and/or arrangement. This power either to give directions to overcome the difficulties or if the provisions of the scheme themselves create an impediment, to modify the provision to the extent necessary, can only be exercised so as to provide for smooth working of the compromise and/or arrangement. To effectuate this purpose the power of widest amplitude has been conferred on the High Court and this is a basic departure from the scheme of the U.K. Act in which provision analogous to Section 392 is absent. The sponsors of the scheme under Section 206 of the U.K Act have tried to get over the difficulty by taking power in the scheme of compromise or arrangement to make alterations and modifications as proposed by the Court. But the Legislature foreseeing that a complex or complicated scheme of compromise or arrangement spread over a long period may face unforeseen and unanticipated obstacles, has conferred power of widest amplitude on the Court to give directions and, if necessary, to modify the scheme for the proper working of the compromise or arrangement. The only limitation on the power of the Court, as already mentioned, is that all such directions that the Court may consider appropriate to give or make such modifications in the scheme, must be for the proper working of the compromise and/or arrangement”. (c) DivyaVasundhara Financiers Limited v K.N. Samant and Others (1990)69 Comp. Cas. 646 (Guj.) A Court Committee was appointed under Section 391 in respect of a scheme of arrangement and all movable and immovable properties of the company were vested in the Committee. The Committee took steps to take possession of various properties. It was found that certain persons had encroached upon some properties which were vested with the Committee. On an application before the Company Court which had sanctioned the scheme for removal of such tresspassers - the Court held that relief could be granted by the Company Court notwithstanding that the alternative remedy of a Civil Suit under Section 9 of the Specific Relief Act, 1963 is contemplated. (d) Rickmers Verwaltung GMBH v Indian Oil Corporation Limited AIR 1999 SC 504 : (1999)1 SCC 1 : In answering the question whether any agreement can be spelt out from the correspondence between the parties it was held: “13. (d) Rickmers Verwaltung GMBH v Indian Oil Corporation Limited AIR 1999 SC 504 : (1999)1 SCC 1 : In answering the question whether any agreement can be spelt out from the correspondence between the parties it was held: “13. In this connection the cardinal principle to remember is that it is the duty of the Court to construe correspondence with a view to arrive at a conclusion whether there was any meeting of mind between the parties, which could create a binding contract between them but the Court is not empowered to create a contract for the parties by going outside the clear language used in the correspondence, except insofar as there are some appropriate implications of law to be drawn. Unless from the correspondence, it can unequivocally and clearly emerge that the parties were ad idem, to the terms, it cannot be said that an agreement had come into existence between them through correspondence. The Court is required to review what the parties wrote and how they acted and from that material to infer whether the intention as expressed in the correspondence was to bring into existence a mutually binding contract. The intention of the parties is to be gathered only from the expressions used in the correspondence and the meaning it conveys and in case it shows that there had been meeting of mind between the parties and they had actually reached an agreement upon all material terms, then and then alone can it be said that a binding contract was capable of being spelt out from the correspondence”. (e) Jyotsna K. Valia v T.S. Parekh and Company 2007(4) Mh. L.J. 517, wherein it is held as follows. “Contract has been defined under Section 2(1) as “an agreement enforceable by law”. Agreement has been defined in Section 2(e) as “every promise or every set of promises forming the consideration of each other is an agreement. Written contract’ in Black's Law Dictionary (8th Edition) means as under: “Written Contract” — A contract whose terms has been reduced in writing”. A written contract or a contract in writing need not always be a contract signed by both the parties and may consist of exchange of correspondence of a letter or letters written by one and assented to by the promisor without signature or even of a memorandum or printed document not signed by either party. A written contract or a contract in writing need not always be a contract signed by both the parties and may consist of exchange of correspondence of a letter or letters written by one and assented to by the promisor without signature or even of a memorandum or printed document not signed by either party. In T.A. Ruf and Company Limited v Pauwels, (1919)1 KB. 660, Duke L.J. observed as under: As to the suggestion which was made that the words “contract in writing” import a contract made by means of a writing or writings signed by both parties, I do not think the words necessarily have that meaning. A document purporting to be an agreement may be an agreement in writing sufficient to satisfy the requirement of an Act of Parliament though it is only verified by the signature of one of the parties”. .(f) B.C. Mohindra Vs Municipal Board, Saharanpur AIR 1970 SC 729 : (1969)1 SCC 56 : .Wherein it is held that a valid contract can be spelt out even from correspondence and that it is not necessary that a contract should be contained in one document signed by both the parties. .(g) Union of India v A.L. Rallia Ram AIR 1963 SC 1685 : .Wherein it was held that a valid contract may result even without the execution of a formal contract. .(h) M/s. Progressive Constructions Limited a Bharat Hydro Power Corporation Limited AIR 1966 Del. 92: Wherein it was held that a contract could come into being by exchange of correspondence — though a formal contract had remained to be signed because there were minor discrepancies in the terms which were being negotiated. The finalisation of the details would not adversely affect the conclusion of the Contract which stood arrived at. (e) SpiliadaMaritime Corporation Vs Cansulex Limited (1986)3 All ER 840: This decision is cited to support the contention that notwithstanding the action initiated in the English Court by GECAS — the present proceedings are more appropriate to deal with the dispute in view of the real and substantial connection it would have on the working of the scheme sanctioned by this Court. In the above decision it is laid down as follows. In the above decision it is laid down as follows. “In considering whether there was another forum which was more appropriate the Court would look for that forum with which the action had the most real and substantial connection, e.g. in terms of convenience or expense, availability of witnesses, the law governing the relevant transaction, and the places where the parties resided or carried on business”. (j) Airbus Industries, GIE v Patel and Others(1998)2 All ER 257, wherein it is laid down: “As a general rule, before an anti-suit injunction could be granted by an English Court to restrain a person from pursuing proceedings in a foreign jurisdiction, comity required that the English forum should have a sufficient interest in, or connection with, the matter in question to justify the indirect interference with the foreign Court which such an injunction entailed”. .(k) The AbidinDaver (1984)1 All ER 470: .“Where a plaintiff wished to pursue his claim in the English Courts despite the fact that there was already an action between the plaintiff and the defendant pending in a foreign jurisdiction which was a natural and appropriate forum for the resolution of the dispute between the parties, the Court ought to exercise its discretion to stay the English action unless the plaintiff established objectively by cogent evidence that even handed justice might not be accorded to him in the foreign jurisdiction or that there was some personal or juridical advantage only available to him in the English action and of such importance that it would be unjust to deprive him of that advantage. Although the mere balance of convenience or the mere disadvantage of a multiplicity of suits could not, of themselves, be decisive in tilting the scales, a strong or an overwhelming balance of convenience or a multiplicity of suits involving serious consequences with regard to expense and other matters might easily, and most probably would, tilt the scales. On the balance of convenience, there was an overwhelming case for the English proceedings to be stayed, since Turkey was the country with which the matter litigated had the closest connection and was also the natural and appropriate forum from the point of view of convenience and expense. On the balance of convenience, there was an overwhelming case for the English proceedings to be stayed, since Turkey was the country with which the matter litigated had the closest connection and was also the natural and appropriate forum from the point of view of convenience and expense. Moreover, there was no evidence that in Turkey a counter claimant in a maritime collusion case would be under any disadvantage compared with a plaintiff, or that the plaintiffs would not obtain justice in the Turkish Courts”. .(l) Lubbe and Others v Cape plc. (2000)4 All ER. 268: .“Where a claimant sued as of right in the English Courts and the defendant applied to stay the proceedings on the ground of forum non-conveniens, that application could not succeed unless the Courts was satisfied that the case might be tried more suitably for the interests of the parties and for the ends of justice by some other Tribunal having competent jurisdiction. In the instant case, the emergence of more than 3,000 new claimants after the decision of the first Court of appeal had an obvious and significant effect on the balance of the proceedings in that it required a detailed factual inquiry and a large body of expert evidence. In that changed situation, the decision of the Judge and of the second Court of appeal that South Africa was clearly the more appropriate forum was correct”. .(m) McDermott International Inc. v Burn Standard Company Limited and Others (2006)11 SCC 18I : 2006 AIR SCW 3276: Wherein it was opined that an elaborate written contract could be varied by subsequent exchange of correspondence. Further the Court has also applied the principle of acceptance sub-silentio in respect of such correspondence. (n) Vishram Arjun v Irukulla Shankaraiah and Another AIR 1957 A.P. 784: Wherein, the term “novation” is examined and laid down as follows. “The term “novation” implies that there being a contract in existence some new contract has been substituted for it resulting in discharge of the old contract. The term appears in the marginal note to Section 62 of the Indian Contract Act which reads as below: “Effect of novation, rescission and alteration of contract: - If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed”. Substitution of a new contract is the core of novation. Substitution of a new contract is the core of novation. Its essential feature is that a right under the original contract is relinquished and new rights referable to new contract are created. The substituted contract therefore must be a valid and enforceable contract to be effective as novation. If the new agreement or contract suffers from legal flaw such as want of registration, stamps etc., on account of which it becomes unenforceable, the original contract will not be extinguished and the rights and liabilities of the parties will be determined on that basis’. (o) Man Roland Druckimachinen AG Vs Multicolour Offset Limited and Another AIR 2004 SC 3345 : (2004)7 SCC 447 : 2004 AIR SCW 3151: The appellant therein having contended that the contract between the parties conferred exclusive jurisdiction on Courts at Germany - the Supreme Court held that the proceedings have been initiated by the respondents under the Monopolies and Restrictive Trade Practices Act, 1969 — the principle that parties shall abide by the jurisdictional clause would not apply — as the Act provides for statutory remedies which are in addition to the usual remedies available in contract. The powers invoked cannot be exercised by the Foreign Court. 21. Per contract Sri S. Naganand, Senior Advocate and Ms. Fereshthe Sethna for the GECAS group contended as follows. That the applicant-KAL is seeking to improve on its baseless contentions in bringing the successive applications under consideration. Insofar as the contention that the respondents seeking to enforce their contractual rights would result in the scheme being rendered unworkable and therefore warranting this Court's intervention is the primary contention. In order to demonstrate that the scheme did not relate to any arrangement with any creditor - attention is drawn to Clause 27 of the Explanatory Statement under Section 393 of the Act to be found at page 153 (157) of the Paper Book in C.A. No. 888 of 2008 which reads as follows. “The rights and interest of the secured and unsecured creditors of the applicant-company will not be prejudicially affected under the scheme, as no sacrifice or waiver is at all called from them, nor are their rights sought to be modified, in any manner”. It is pursuant to such an express assurance that the GECAS group had consented to the scheme. “The rights and interest of the secured and unsecured creditors of the applicant-company will not be prejudicially affected under the scheme, as no sacrifice or waiver is at all called from them, nor are their rights sought to be modified, in any manner”. It is pursuant to such an express assurance that the GECAS group had consented to the scheme. It follows, that any reliefs could be sought against these respondents only if these respondents had agreed to a reconstitution of the lease agreements under the scheme. On the other hand, the scheme has been completely implemented on 5-9-2008 — no further supervision of this Court is even warranted in respect of the scheme. 22. Notice is drawn to the express terms of the common terms agreement, applicable to all the lease agreements, pertaining to the aircraft as regards the obligations of KAL towards payments, consequences of default and remedies available to the respondents. It is further sought to be demonstrated that the default in payment of rentals is not at all disputed. Hence, the consequent termination and initiation of proceedings before the English Court can hardly be characterised as an action which results in rendering the scheme, sanctioned by this Court, unworkable nor can it be said that the respondents have acted contrary to any undertaking before this Court prior to the scheme being sanctioned. 23. The further primary contention on behalf of KAL to the effect that there has been exchange of e-mails and correspondence which has resulted in a mutual agreement for termination of the lease agreements and for redelivery of aircraft is contended to be not only an after-thought, but a theory which is patently false, as it is sought to be pointed out that there is an attempt at suppression of the complete exchange of correspondence and a blatant distortion of the same. In this regard, attention is drawn to an e-mail dated 17-10-2001 (page 442 of CA No. 893 of 2008 and also at page 298 of CA No. 888 of 2008) that there are only proposals for settlement in respect of all the four aircraft belying the alleged conclusion of a “September Agreement”. Counsel would submit that the so-called “November Agreement” is hence a figment of imagination of KAL. Counsel would submit that the so-called “November Agreement” is hence a figment of imagination of KAL. Even the “September Agreement” was in relation to a tentative proposal in relation of two aircraft - MSN 2077 and MSN 2029 and not all the four aircraft — this had never culminated in a firm agreement. If this were not so, a reference ought to have found place to such an agreement in the application in CA No. 860 of 2008. Attention is also drawn to further exchange of e-mails dated 19-9-2008 at page 19 of the reply to CA No. 893 of 2008 that the so-called “September Agreement” was a failed attempt at a settlement. It is further contended that the allegation of a “November Agreement” is also belied in the face of several formal proceedings having been initiated including these proceedings and it is not tenable that the respondents would waive their rights verbally or that it could be so construed with reference to inconclusive exchange of e-mails by representatives of the parties. In any event, even if such a modified agreement is capable of being found with reference to the exchange of correspondence - an adjudication of the dispute in that regard is clearly outside the scope of Section 392 of the Act, having regard to the scheme which did not contemplate a reconstitution of the terms of the lease agreements. It is reiterated that the only ground urged in the first instance, in CA No. 860 of 2008, by KAL was an alleged liquidity crunch faced by it due to a World wide crisis in the aviation industry on account of which it was unable to pay lease rentals. 24. It is contended that the proceedings in the Courts in London being prior to point of time and the parties having agreed to the exclusive jurisdiction of the said Court - the reliefs claimed by KAL cannot be considered by this Court under Section 392 of the Act. Reliance is placed on the following authorities: (a) S.K. Gupta's case: Wherein it is held: “Para 10. At the outset it may be mentioned that though a large number of provisions of the Companies Act, 1956, are in pari materia with the provisions of Companies Act, 1948 of the U.K (`U.K Act' for short), there is no provision analogous to Section 392 in the U.K Act. At the outset it may be mentioned that though a large number of provisions of the Companies Act, 1956, are in pari materia with the provisions of Companies Act, 1948 of the U.K (`U.K Act' for short), there is no provision analogous to Section 392 in the U.K Act. The Court under the U.K. Act has no power to modify the scheme either at the time when it is offered for its sanction or at any time subsequent thereto. The Parliament has in its wisdom, conferred a power of wide amplitude on the High Court in India to provide for its continuous supervision of the carrying out of compromise and/or arrangement and also the consequential power to make the supervision effective by removing the hitches, obstacles or impediments in the working of compromise or arrangement by conferring power to give such directions in regard to any matter or for making such modification in the compromise or arrangement as it may consider necessary for the proper working of the compromise and/or arrangement. Sub-section (2) confers power on the Court to act under Section 392 either on its own motion or on the application of any person interested in the affairs of the company” And at para 13: “The only limitation on the power of the Court, as already mentioned, is that all such directions that the Court may consider appropriate to give or make such modifications in the scheme, must be for the proper working of the compromise and/or arrangement”. (b) Mysore Electro Chemical Works Limited v Income-tax Officer, Circle I, Bangalore 1982(1) Kar. L.J. 83: (1982)52 Comp. Cas. 32 (Kar): In that case, a scheme for reconstruction of a company in winding up was sanctioned. A foreign collaborator of the company was assessed to income-tax in the hands of the company, in a representative capacity, and a tax demand was raised on the company. Section 392 of the Act having been invoked by the company to challenge the demand, this Court has held that it was not a matter covered by the scheme sanctioned by the Court. .(C) Nathmal Lal Chand v Bharat Jute Mills Limited and Others (1983)53 Comp. Cas. 392 (Cal.). Section 392 of the Act having been invoked by the company to challenge the demand, this Court has held that it was not a matter covered by the scheme sanctioned by the Court. .(C) Nathmal Lal Chand v Bharat Jute Mills Limited and Others (1983)53 Comp. Cas. 392 (Cal.). .Applying the ratio laid down in S.K. Gupta's case, it was held that the power to enforce a scheme under Section 392 can only be in respect of any matter relating to the implementation of the sanctioned scheme and cannot be in respect of any matter falling outside the same. .(d) Delhi Flour Mills Company and Another v Indian Hardware Industries and Others (1983)53 Comp. Cas. 814 (Del.): .Wherein it was found on facts that a secured creditor's right to enforce its security was not affected by or dependent on the scheme sanctioned under Section 392. .(e) S.P. Chengalvaraya Naidu (dead) by L.Rs v Jagannath (dead) by L.Rs and Others AIR 1994 SC 853 : (1994)1 SCC 1 : To support the contention that KAL has suppressed material facts and is hence disentitled to relief. It was held by Supreme Court as follows in the above case: “litigant who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side, then he would be guilty of playing fraud on the Court as well as on the opposite party”. .(f) Maddi Lakshmaiah and Others v Duncan Agro Industries Limited and Others (2001)105 Comp. Cas. 771 (Cal.): .(g) Bhaurao Dagdu Paralkar v State of Maharashtra and Others AIR 2005 SC 3330 : 2005 AIR SCW To support the contention that the application under Section 392 of the Act could not be used as a lever in respect of a contractual claim. 4094: (2005)7 SCC 605 : Wherein it is held that suppression of a material document would also amount to a fraud on the Court. .(h) Meghal Homes Private Limited v Shree Niwas Girni K.K. Samiti and Others AIR 2007 SC 3079 : (2007)139 Comp. Cas. 418 (SC) : (2007)7 SCC 753 ’. 4094: (2005)7 SCC 605 : Wherein it is held that suppression of a material document would also amount to a fraud on the Court. .(h) Meghal Homes Private Limited v Shree Niwas Girni K.K. Samiti and Others AIR 2007 SC 3079 : (2007)139 Comp. Cas. 418 (SC) : (2007)7 SCC 753 ’. .(i) Modi Entertainment Network and Another v W.S.G. Cricket Private Limited AIR 2003 SC 1177 : (2003)4 SCC 341 : This case involved the grant of rights to telecast a sports tournament and to sell advertisement slots thereon, by the respondent to the appellant. They had agreed on a non-exclusive jurisdiction clause of English Court. Disputes having arisen - the appellant sought an anti-suit injunction in a suit before the Bombay High Court restraining the respondent from continuing with an action brought by it before an English Court, on the ground that the Indian Court was a natural forum and that the English Court had no nexus with the parties on the subject-matter and that it was a forum non-conveniens. It has held, inter alia as follows. “A party to a contract containing the jurisdiction clause cannot normally be prevented from approaching the Court of choice of the parties as it would amount to aiding breach of the contract; yet when one of the parties to the jurisdiction clause approaches the Court of choice in which exclusive or non-exclusive jurisdiction is created, the proceedings in that Court cannot per se be treated as vexatious or oppressive nor can the Court be said to be forum nonconveniens”. 25. Having regard to the above facts and circumstances and the admitted position even during the pendency of these applications, a fundamental question that needs to be addressed would be, whether this Court acting under Section 392 of the Act is in a position to adjudicate on the dispute to consider the reliefs as prayed for, on the footing that the action of the respondents results in the scheme sanctioned by this Court, would be rendered unworkable. From the express tenor of Section 392 and on a review of the case-law, it is plain that the purpose underlying Section 392 is to provide for effective working of a compromise or a Composite Scheme of Arrangement once sanctioned and over which the Court must exercise continuous supervision. From the express tenor of Section 392 and on a review of the case-law, it is plain that the purpose underlying Section 392 is to provide for effective working of a compromise or a Composite Scheme of Arrangement once sanctioned and over which the Court must exercise continuous supervision. The power conferred is of wide amplitude and enables the Court to give such directions in regard to any matter or for making such modification in the compromise or arrangement as it may consider necessary for its proper working. 26. In the instant case on hand, the respondents had admittedly indicated that they had no objection to the scheme of arrangement being sanctioned by this Court. It is however not shown that the GECAS group had conceded that the terms of the lease agreements could be varied to facilitate any “cost-cutting measures” envisaged under the scheme to achieve the object thereof. Significantly, the application in CA No. 860 of 2008 is silent of any such consensus reached prior to the sanctioning of the scheme. If this were so and if the scheme had been sanctioned with this in view, then notwithstanding the express terms of any formal agreement, the scheme, on its sanction, would override the contract, as it would have gained statutory force. In the absence of any clear consensus as between KAL and the respondents, who are in the position of “creditors”, this Court would necessarily have to proceed with caution in varying or modifying the express terms of formal agreements or in assuming jurisdiction over disputes which would properly be dealt with by the appropriate for a contemplated in law or by agreement between the parties to the dispute. Having arrived at this conclusion - it would be improper to address the factual matrix as is elaborately placed before this Court, including the question as to whether parties have conferred exclusive jurisdiction on any one or the other Court. 27. This Court having passed an order ex parte, as on 31-10-2008, restraining respondents 1 to 7 from taking any coercive action with regard to repossession of the aircraft, was tentative and on a prima facie view of the urgent and perilous circumstances apprehended by KAL. 27. This Court having passed an order ex parte, as on 31-10-2008, restraining respondents 1 to 7 from taking any coercive action with regard to repossession of the aircraft, was tentative and on a prima facie view of the urgent and perilous circumstances apprehended by KAL. It is to be noticed that as on date the applicant is no longer in possession of any of the aircraft the applicant has unconditionally handed over and GECAS has acknowledged before this Court the taking over of three aircraft. The one aircraft, MSN 2029, that is yet to be redelivered is in fact grounded as its engines are with the manufacturer Pratt and Whitney, whose claim towards maintenance charges is a point of dispute between the parties. 28. The scheme sanctioned by the Court was a scheme of arrangement which has been implemented. It is not a scheme of compromise. Therefore, the continued supervision by this Court as to working of the scheme cannot extend to areas that may involve commercial activity of the applicant with its business partners in the usual course of business, unless there was a semblance of an undertaking or agreement by such a party, prior to the sanctioning of the scheme which could be enforced through the medium of this Court by recourse to Section 392 of the Act. The mere amplitude of the power cannot be used to ensure the applicant’s business profits to the detriment of a business partner. Further, the fears expressed by KAL as to a collapse of its business if the reliefs claimed in the application CA No. 860 of 2008 were not granted were obviously ill-founded — as it has emerged unscathed till date. 29. The circumstance that this Court was unable to give its undivided attention to the above applications pursuant to the interim order of October 31, 2008 passed in C.A. No. 860 of 2008 is on account of a loaded board. Added to this, the verbiose pleadings of the parties entailing hearing spread over several days, cannot enable KAL to claim that the period of pendency of these proceedings and the interim order of this Court be taken into account in applying the rigour of express provisions of the several lease agreements that are the subject-matter of these proceedings, in any adjudication that may follow. In the light of the above observations, the application in CA No. 860 of 2008 is dismissed, the application in CA No. 888 of 2008 is consequently allowed, the interim order dated 31-10-2008 stands vacated. The applications in CA No. 893 of 2008 and CA No. 1081 of 2008 are dismissed in limine. No order as to costs.