TaxTMI 
TaxTMI 
2019 (12) TMI 54
X X X X Extracts X X X X
X X X X Extracts X X X X
....3. The brief facts of the case are stated as under :- I. The petitioner in the present petition is a senior citizen lady was invested her money in the respondent company M/s. Jai Prakash Associates Limited in different Fixed Deposit Receipts. However, the respondent company has not redeemed the FDRs on the date of maturity and also not paid the interest for additional time period to keep the money of investor. II. Further, petitioner sent some claim letters to the respondent company about non-payment of due interest after maturity period of FDRs and approached the respondent company many times, but petitioner has not received any satisfactory response. 4. M/s. Jai Prakash Associates Limited (Respondent company) has filed its reply to this petition. 5. It is stated on behalf of respondent company in its reply that the petitioner on the ground that the interest on her deposits after the date of maturity till the date of actual repayment of deposits, has not been paid and it is admitted by the petitioner that she has/received repayment of her deposits as well as interest upto the respective dates of maturity and nothing is outstanding on account of principal am....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pany. 13. Ld. Counsel appearing on behalf of petitioner, during the course of his argument submitted that it is admitted fact that the petitioner was invested her money in the respondent company on different dates and in lieu of that under the terms and conditions, Fixed Deposits Receipts were issued showing the date of invested amount, date of maturity and date of interest. 14. He further submitted that it is also admitted fact that the respondent company has not paid the due amount on the due date, rather the amount was paid after the date of maturity shown in the FDRs. He further submitted that is also admitted fact that the amount was invested for 36 months and on maturity on the due date, she was entitled to get the maturity amount along with interest. 15. He further submitted that it is also an admitted fact that the matured amount was refund without interest from the period when the Fixed Deposits was matured till the date of refund of the amount. He further submitted that in similar case, the Hon'bie Apex Court in Jaiprakash Associates v. Jainendra Sahai Sinha [Civil Appeal No.4525-4526 of 2017] directed the respondent company to pay the interest at the rate of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t, in that case only Section 73(4) is applicable, whereas in other case, Section 74(3) of the Companies Act is applicable. So, this petition is not maintainable because the petition has been filed u/s 73(4) of the Companies Act. 22. Therefore, he submitted that there are circumstances in which deposit was matured prior to 2014, but not paid, all these types of cases are governed by old Act, whereas the deposit accept before the commencement of Companies Act, 2013, but matured after that, that would be governed by Section 74(3) of the Companies Act, 2013. So, the petition filed by the petitioner is not maintainable. He further submitted that Form 11 of NCLT Rules says that the repayment be made in terms and conditions of the agreement. 23. He further submitted that the FDRs shows that on the date of maturity, interest would be seized. Therefore, according to the terms and conditions arrived at between the parties, the petitioner is not entitled to get the interest after the due date, because on that date as per the terms and conditions mentioned in column 5 of the certificate issued by the respondent company, the interest would be seized. 24. Further, it is submitted that t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....petitioner is entitled to file an application U/s 73(4) of the Companies Act. He further submitted that Section 74(3) of the Companies Act, 2013 is not applicable, it is in respect of the company, who fails to repay the deposit or any interest, and for that there is a provision to impose punishment in addition to the payment of amount deposit. 30. He further submitted that the decision upon which the respondent company placed reliance, is not applicable in the case in hand, because here in the case, SLP was admitted and it was converted into the Civil Appeal, therefore, any finding given by the Hon'bfe Apex Court in that Civil Appeal is bending upon the Lower Court in view of the principle of the doctrine of merger and in this regard he placed reliance upon the decision of Hon'ble Supreme Court Kunhavammed (supra) and in S.E. Graphites (P.) Ltd.(supra). 31. The Ld. Counsels for petitioners of other cases (CP Nos.103, 104, 105, 106, 68, 69, 70, 71, 72, 131, 03/ALD/2019 and CP No. 333 & 321/ALD/2018), adopted the argument advanced on behalf of Ld. Counsel appearing for petitioner in CP No. 320/ALD/2018 and further submitted that their cases also stand on similar and sam....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... "19. Applicability of sections 73 and 74 to eligible companies. - Pursuant to provisions of sub-section (2) of section 76 of the Act, the provisions of sections 73 and 74 shall, mutatis mutandis, apply to acceptance of deposits from public by eligible companies. Explanation.- For the purposes of this rule, it is hereby clarified that in case of a company which had accepted or invited public deposits under the relevant provisions of the Companies Act, 1956 and rules made under that Act (hereinafter known as "Earlier Deposits") and has been repaying such deposits and interest thereon in accordance with such provisions, the provisions of clause (b) of sub-section (1) of section 74 of the Act shall be deemed to have been complied with if the company complies with requirements under the Act and these rules and continues to repay such deposits and interest due thereon on due dates for the remaining period of such deposit in accordance with the terms and conditions and period of such Earlier Deposits and in compliance with the requirements under the Act and these rules; Provided further that the fresh deposits by every eligible company shall have to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....are related with each other, so, I would like to take up these two points together for the sake of convenience. II. From the pleadings of the parties, it is admitted fact that the matured amounts of the FDRs were not paid on due date, rather it was paid on different dates to the different petitioners and that is the reason, the petitioners approached before this Tribunal to claim the interest at the rate of 12.5% per annum from the date of maturity till the date of actual payment was made. 34. From the rejoinder filed by the petitioner, and it is also contended by the Ld. Sr. Counsel for respondent that earlier in CP No.74/ALD/2018, this Tribunal on 27.09.2018 passed the following order :- "Sh. Udai Chandani, Advocate for the petitioner and Sh. R.P. Agarwal, Advocate for the respondent, is present. Learned counsel appearing for the respondent company made a statement that the company is ready to pay interest amount at agreed rate for the delayed period (from the date of maturity till the date of actual repayment of deposit amount) on or before 18.10.2018. Learned counsel for the petitioner made a statement that in case respondent makes payment....
X X X X Extracts X X X X
X X X X Extracts X X X X
....elief on the similar facts and circumstances or not? Although, the Ld. Sr. Counsel appearing on behalf of respondent company raised the aforesaid submissions but has not produced any law before me to show the doctrine of equality, is not applicable here in this case and why the same relief is not granted to the other persons under similar circumstances, upon which the others have already been granted the reliefs. There is no dispute that in view of Article 14 of the Constitution of India, there is equality before law and equal protection of law of all the persons residing within the territory of India. 42. As I have already referred Section 424 of the Companies Act and held that while dealing with the case under the Companies Act, this Tribunal shall be governed by the principle of natural justice and this Tribunal is of the considered view that the principle of natural justice demand that equal protection must be given to all the persons on the similar facts and circumstances of the case. Here in this case, as the petitioners in their rejoinder admitted that this Tribunal has granted relief in CP No.74/ALD/2018 to the other depositors of the respondent company whose case also s....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a revi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... No.37/ALD/2017 seeking for extension of time for making repayment of fixed deposit amount on attaining its maturity to its depositors. 52. At this juncture I would like to refer Section 74(2) of the Companies Act, 2013 and the same is quoted below :- "The tribunal may, on an application made by the company, after considering the financial condition of the company, the amount of deposit or part thereof and in the interest payable thereon and such other matters, allow further time as considered reasonable to the company to repay the deposit." 53. A mere plain reading of the provision shows that by exercising the power, this Tribunal allow the time as considered reasonable to the company to repay the deposit and since from the perusal of the order dated 23.10.2017 passed by this Tribunal, I find that this Tribunal simply regularized the belated payment, which was made by the respondent to the depositors by extending the time to make the payment u/s 74(2) of the Companies Act, 2013. In my opinion, this order will not debar the petitioners to get the interest after the maturity till the date of actual payment is made. 54. Therefore, on the basis of aforesaid discussio....