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2021 (3) TMI 396 - NATIONAL COMPANY LAW TRIBUNAL , KOCHI BENCHDemand of return of deposit alongwith interest - Granting of appropriate rate of Interest for the delayed period - negligence of the Board of the Respondent- Company either in making the payment or giving any reply at all to the demand of the Petitioner - HELD THAT:- Deposits can be accepted by the Companies under Section 73 to Section 76 of the Companies Act, 2013 read with Companies (Acceptance of Deposits) Rules, 2014 as amended time to time. For invoking the jurisdiction of the Tribunal as per Section 74(2) under the Companies Act, 2013, even a partial failure by the Company to repay the deposit was sufficient. In fact, Section 2 (31) of the Companies Act speaks of the meaning of deposit. The Tribunal is having vide discretionary powers regarding the repayment of ‘Deposit’(s) but it must exercise its discretion objectively taking into consideration all the relevant aspects in a conspectus judicial manner. In reality, the distinction between deposit and loan may not be a relevant factor for interpreting the term ‘Deposit’. To put it succinctly, under the new Companies Act, 2013, the definition of the term ‘Deposit’ is of wider amplitude. In the present case, this Tribunal could not find any evidence the Company filed application before the Registrar of Companies regarding any statement of the deposits accepted by the company and sums remaining unpaid on such amount with the interest payable thereon along with the arrangements made for such repayment. It is evident from the receipt No. 140 issued by the Respondent No.1 Company to the petitioner on 23.05.2012 that the petitioner issued a cheque (No. 118356) of ₹ 2,45,000 towards ‘deposit/Loan.’ The Respondent did not submit any evidence of Board Resolution with regard to the collection of money - As far as the natural justice is concerned, it is true that the Company retained the Deposit amounts for its business purposes which was otherwise to be paid to the depositors on the due date of maturity (in the present petition no due date or interest payable is referred by both the parties) or in other words, the Company has used the money of the public for number of years for its business purposes. Therefore, it is an accepted commercial principle to pay Interest to a person whose money is used by the Borrower for its business advantage. Granting of appropriate rate of Interest for the delayed period - HELD THAT:- The Legislature is very much convinced of the fact that if the Share Application money is used by the Company without allotment of Shares of Securities, then such Share Application money shall be treated as if it is a “deposit” with the Company on which 12% Interest can be earned. The present case also falls within the same category, which is in favour of the Depositor. If this principle is followed, then it is judicially correct to order the grant of Interest @ 12% per annum for the delayed period. Since the instant petition remained pending for quite some time, a direction is issued to the Respondent company to repay the amounts ‘due and payable’ to the petitioner with 12% interest for which the company has defaulted and shall file an unconditional affidavit stating strict compliance, with the Registrar of Companies, Kerala by 01.05.2021 - Petition disposed off.
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