TaxTMI 
TaxTMI 
2020 (10) TMI 960
X X X X Extracts X X X X
X X X X Extracts X X X X
....s. Karanya Heart Care Pvt. Ltd. is engaged in the business of running hospitals and has a hospital unit namely "Ashwini Health Care" which is a multi speciality hospital and hence relationship and mutual trust was developed between the parties. ii. The applicant claims that the erstwhile directors of Respondent namely, Dr. Krishna Gupta and Smt. Kiran Gupta represented that for the business needs of the respondent company the funds are needed and they requested the applicant to make investment in the share capital of the company and assured that the company is performing good and the investments will yield good returns and thereby applicant was induced to subscribe and make investment in the capital of the company. iii. The applicant based upon the representations made and the trust he was having on the then directors of the Respondent Company. The applicant agreed to make investment in the share capital of the Respondent and has invested Rs. 1,03,00,000/- during the year 2011-12 and last payment was received by the Respondent on 23.07.2012. The details of money paid is as under: Date Amount in Rs. 27.06.2011 5,00,000 &nb....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Companies Act, 2013 and various notifications issued under the act and rules, the Corporate Debtor was under legal obligation either to allot share by 1st June 2015 or to return the said amount of share application money received and pending allotment as on 31st March 2015 failing which the Respondent is required to comply with the provisions of companies (Acceptance of Deposit Rules) 2014. ix. The applicant submitted that after repeated reminders when the money was not returned, a demand notice dated 29.03.2017 was served upon the Respondent and directors asking refund of entire amount with interest pursuant to the express provisions of the law but they neglected and thereby a Company Petition being No. 205 (ND)/ 2017 under section 73(4) was filed for return of entire share application money which has became deposit by virtue of Companies Act, 2013 along with the statutory interest and penal interest as prescribed under the law and rules. x. The applicant brought to the notice of the Hon'ble Tribunal that the assets of the Respondent are likely to be transferred, the Hon'ble Tribunal passed a restraining order dated 30.08.2017 restraining the Respondent from disposing ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....plicant submitted that the Respondent has not raised any existence of dispute before the receipt of Demand Notice dated 22.04.2019. 2. Consequent to the notice issued by this Tribunal, the Respondent filed its reply in which the following contentions are made: i. That no cause of action arises in favour of the Applicant and against the Respondent for filling of the petition under section 7 of IBC. That no financial debt is due and payable by the Respondent to the Applicant. That the petition is liable to be dismissed as the Applicant has failed to establish that he is a financial creditor. ii. The Respondent submitted that the Applicant had filed application dated 11.10.2017 for withdrawal of petition No. 205/(ND)/2017 is false. The order dated 11.10.2017 of the Hon'ble National Company Law Tribunal does not mention about any such application nor any diary number or application number of the alleged application has been provided by the Applicant. The alleged application is neither supported by an affidavit nor it is verified or notarized. The said petition was withdrawn by the counsel of the petitioner unconditionally on the instructions of the Applicant and not on the bas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntrol of Respondent Company in January, 2019. vii. That the Respondent Company never accepted any deposit from the Applicant and did not enter into any agreement with him for receipt of any money towards the depositor to pay any interest or to issue any receipt for payment of the money. As the Respondent Company never took any loan from the Applicant, his name nowhere appears in the annual accounts either as a creditor or depositor. The Respondent company did not issue any receipts in accordance with the Companies (Acceptance of Deposits) Rules, 1975, and never accepted any deposits nor offered any interest in favour of the petitioner. The petitioner himself admitted to the fact that money was invested by him in the Share Capital of the Respondent Company. viii. The Respondent submitted that the Applicant had paid the money for the purpose of Share application and not as deposit or loan. That no interest was payable on share application money, further, there is no agreement between the Applicant and the Respondent to substantiate that money was paid as a financial debt or that the money was borrowed against the payment of interest. The Applicant has himself not disclosed any fi....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... The Hon'ble Court observed as under: "The amount due from the buyer, together with the amount of interest can only mean that the principal sum due from the buyer as well as or along with the amount of interest calculated under the provision of the act, are recoverable. The word 'together' here would mean 'as well as' or 'along with'. This cannot mean that the principal sum must be due on the date of the filing of the suits. The suits are maintainable for recovery of the outstanding, principal amount, if any, along with the amount of interest on the delayed payments as calculated under section 4 and 5 of the Act. We are unable to agree with that if the principal sum is not due, no suit would lie for the recovery of the interest on the delayed payments, which might have already accrued. If such an interpretation is given the very object of enacting the act would be frustrated. The Hon'ble Supreme Court in M/s. Modern Industries vs. M/s. Steel Authority of India (2010) 5 SCC 44 affirmed the view of Hon'ble High Court. IV. That the section 74(3) of the Companies Act, 2013 provides that "if Company fails to repay the deposit or part thereof or a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts. 5. We have heard the arguments made by both parties and gone through the pleadings. The Respondent's first contention that he has already paid the full and final amount of Rs. 1.03 Crore (Rupees one crore three lacs only) pursuant to amicable settlement of dispute as recorded in order dated 11th October, 2017 of the Hon'ble National Company Law Tribunal passed in CP No. 205(ND)/2017, the Applicant has accepted the fact that the said amount has been duly received by him but argued that the interest on that amount has not been paid. On our perusal of provisions of section 42 of Companies Act, 2013 and Companies (Acceptance of Deposit) Rules, 2014 as well as of the definition of financial debt under the Code we find that the definition of 'Deposit' under Companies (Acceptance of Deposit) Rules, 2014: 2 Definitions. (1) In these rules, unless the context otherwise requires,__ (c) "deposit" includes any receipt of money by way of deposit or loan or in any other form, by a. company, but does not include: (vii) any amount received and held pursuant to an offer made in accordance with the provisions of the Act towards subscription to any securities, including s....