2020 (10) TMI 960

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....td. at sector 51 Noida. Whereas, the Respondent M/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 Amoun....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ation money pending allotment since 23.07.2012 despite several requests made by applicant. viii. That the rules framed under the 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 ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ed a demand notice dated 22.04.2019 seeking payment against the outstanding financial debt of Rs. 1,52,37,000/- (Rupees one crore fifty two lacs thirty seven thousand only). xvi. The applicant 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 applicat....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ws that the petitioner is trying to resile from the settlement after there was a change in Management of the Respondent Company as 'old management' of the Respondent Company had exited sometime in January, 2019 and the 'new management' took control 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 p....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....companies Acceptance of Deposit Rules 2014 was required to be followed. iii. That the question whether a suit for recovery of mere interest is maintainable was considered by full bench of Gauhati High Court in Assam State Electricity Board and Ors. V. Shanti Conductors Pvt. Ltd. and another (2005) 13 SCC 19. 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 obje....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....relied upon the Judgement of Hon'ble National Company Law Tribunal Mumbai Bench in Jagdambey International Vs. Visa Powertech Pvt. Ltd. (CP (IB)4023/I$BP/MB/2018). THE Respondent also mentioned the Companies (Acceptance of Deposits) Rules, 1975, clause 2(b) (vii) wherein share application money pending allotment is not included in the definition of Deposits. 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: ....