2019 (7) TMI 1891

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.....2008, to the Respondent for issue of shares in favour of the Applicant. c. It was agreed between the parties that one Suresh Kumar shall be one of the directors of the Respondent and accordingly, he was appointed as a director on 18.01.2008. d. The allotment of shares was put on hold on the request of the Applicant since an unforeseen dispute on the project land was raised by NOIDA authority which came to be the subject matter of a petition pending before the Hon'ble High Court of Judicature at Allahabad. e. The dispute with NOIDA authority remained pending for several years as a result of which the project lost its appeal. Consequently, vide letter dated 27.04.2015, a request was made by Suresh Kumar Chauhan for refund of the share application money. Suresh Chauhan also resigned from the Board of Directors of the Respondent vide communication dated 27.04.2015. f. A letter dated 27.04.2015 was addressed to the Board of Directors of the Respondent wherein it was pointed out that Ajit Kumar Gupta, director of Respondent had agreed to, subject to Reserve Bank of India approval, refund the amount of share application money being reflected in the....

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....de email dated 25.06.2015, the HDFC Bank informed the Respondent that as per RBI guidelines, refund should be sought by the person who remitted the money and not by a third party i.e. Suresh Chauhan. The Respondent wrote an email dated 02.07.2015 to the Applicant and stated that since the share application money has been received from the Applicant, the refund must also be sought by the Applicant. Thereafter, no email was received from the Applicant. e. Further, vide email dated 12.10.2015, the Respondent once again sent a reminder letter to the Applicant, however, no response was received from the Applicant. Therefore, due to non-availability of documents from the Applicant and Suresh Chauhan, the said refund could not be initiated with concerned bank. f. Further, it is denied that the Respondent has received any letter dated 03.07.2015 from the Applicant requesting refund of the money. Further, despite a reminder email dated 12.10.2015 from the Respondent, no response was received from the Applicant. 4. The Applicant in its rejoinder has contended as follows: a. The claim is not barred by limitation. The Respondent's balance sheet for the year 20....

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....- (a) money borrowed against the payment of interest; (b) any amount raised by acceptance under any acceptance credit facility or its dematerialised equivalent; (c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; (d) the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed; (e) receivables sold or discounted other than any receivables sold on non-recourse basis; (f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing; 2 (Explanation. -For the purposes of this sub-clause, - (i) any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing; and (ii) the expressions, "allottee" and "real estate project" shall have the meanings respectively assigned to them in clauses (d) and (zn) of section 2 of the Real Estate (Regulation and Development) Act, 2016 (16 of 2016);] (g) any deri....

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....sary to look at Companies Act, 2013 ("the Act") and its relevant rules. Section 42(6) of the Act and the Companies (Acceptance of Deposits) Rules, 2014 ("Deposit Rules") lay down the treatment of share application money. The relevant parts of the Act and the Deposit Rules are stated hereunder: "42. *** (6) A company making an offer or invitation under this section shall allot its securities within sixty days from the date of receipt of the application money for such securities and if the company is not able to allot the securities within that period, it shall repay the application money to the subscribers within fifteen days from the date of completion of sixty days and if the company fails to repay the application money within the aforesaid period, it shall be liable to repay that money with interest at the rate of twelve per cent. per annum from the expiry of the sixtieth day: Provided that monies received on application under this section shall be kept in a separate bank account in a scheduled bank and shall not be utilised for any purpose other than-- (a) for adjustment against allotment of securities; or (b)for the repayment of monies where the compa....