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2016 (11) TMI 1165 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHI

2016 (11) TMI 1165 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI - TMI - Enhancement of time for repayment u/s 74 - rights of the applicants to seek recovery of their dues - Held that:- Seeing the sentiments of the agitated depositors, and with a view to secure whatever asset could be salvaged, this Bench has accepted the Undertaking of the respondents that the six parcels of land in Kochi, Hyderabad, Chennai and Maharashtra offered in the present proceedings would be sold, and the proceeds would b .....

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date the assets would in no way be their defence in the prosecution initiated under section 74(3) of the Companies Act, 2013 or in any other Court of law. As observed earlier during the proceedings, that though the parcels of land offered are mere sops which are either of little value or are unsaleable, but have been taken to secure and salvage the depositors' interest at least to that extent. - The agitated depositors also apprehend that the directors of R1 Company may escape the boundaries .....

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ged loans to the subsidiaries etc. had been written off. It would be beyond the scope of this Bench to look into this aspect. The documents submitted shall be handed over to the RoC to investigate the allegations of siphoning off or diverting money on account of which the applicants are unable to retrieve their deposits. All documents be handed over by the Bench Officer to the office of the RoC under acknowledgement of Receipt. - Comnany Application No.41(ND) 2016 & Company Petition No. 124 (ND) .....

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ings and documents filed therein, being voluminous, would be considered common to all petitions. 2. Fixed deposits invited from the public have duly matured, but the Respondent Company has raised its hands and expressed its inability to repay the matured proceeds. The Respondent had initially approached the erstwhile Company Law Board with an application under section 74(2) of the Companies Act, 2013 for extension of time to repay the deposits which was rejected. 3. The investors, many of whom a .....

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id, the Directors and the family members continue to live opulently and in the lap of luxury. 4. With no serious plan to repay, the Respondent's vehement opposition to the prayer is the maintainability of the petitions u/s 73(4) of the Act. The main thrust of the arguments of Mr. Sindhwani, Ld. Senior Counsel appearing for the company is that the doors of the NCLT are closed for any depositor having made the deposits prior to notification of the Companies Act, 2013 coming into effect i.e., p .....

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anies Act, 2013 i.e. on and after the commencement of the Companies Act, 2013. Since the deposits taken by the respondent company were taken as per the provision of the Companies Act, 1956 and it has not invited, accepted or renewed any deposits on or after 01.04.2014 (i.e. date on which Section 73 of the Companies Act, 2013 was notified), the deposits in question in the present applications cannot come under the preview of the "Deposits" as mentioned in Section 73(1) of the Companies .....

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ection 76 of the Act. 7. According to the respondents, the term "Act" has also been defined under Section 2(a) as per which "Act" means Companies Act, 2013 (18 of 2013). So clearly the Depositors u/s 73(4) are only ones who have made deposits under the Companies Act, 2013. 8. Interpreting the above, Ld. Senior Counsel states that there is no remedy available to a depositor whose deposits were accepted under the old Act for raising their grievances before the NCLT. As per the .....

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he financial health of the company is critical as the Real Estate Industry has seen a downslide. On the depositors' plea that the Company's assets be sold to liquidate their dues, it is stated that and all their assets are already mortgaged and encumbered. The company, which primarily deals in development of Real Estates, has been in doldrums. It is also stated that though enhancement of time had been prayed for to liquidate the liability towards the depositors, the same had been rejecte .....

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lish the respondent's application for dismissal of the petitions on grounds of maintainability and has submitted that the new act of 2013 does not supersede the old Act of 1956, but is in supersession and hence grants more tooth and power to the old Act. 10. After hearing the legal arguments of the both the Counsels and hearing the submissions made by the various aggrieved investors, I find myself unable to appreciate the arguments advanced by the Ld. Senior Counsel for the respondents. Simp .....

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is Forum, which may have the trappings of a Court is vested with adjudicatory rights for exercising all equitable jurisdiction. It is not the intention of the legislature to differentiate between depositors prior to or after 1.04.2014. The remedies cannot be any different, neither can they be categorised or compartmentalised into two separate groups. Rule 19 of the Companies (Acceptance of Deposits) Rules, 2014 clarifies the applicability of the provisions of Sections 73 & 74 to deposits acc .....

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I do agree with Mr. Sindhwani is that no case of cheating under section 420 IPC is made out, which is the sentiment of the agitated depositors, as the intention to cheat was non-existent at the time of acceptance of the deposits, a fact borne out from the regular interest previously enjoyed by the petitioners. 12. The respondent's application is therefore dismissed with costs of ₹ 25,000/-. Costs to be paid to the Prime Minister's Relief Fund. 13. In view of the above, all petitio .....

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ld, and the proceeds would be deposited in IDBI Bank, A/c No. 0110102000026309 maintained with IDBI Bank Limited at E-29, PVR Road, Saket, New Delhi-110017 and shall be used only to liquidate the liability towards the present applicants. This would be without prejudice to the rights of the applicants to seek recovery of their dues from any other tangible assets of the R1 Company or take recourse to any other remedy available under law. It is being made abundantly clear that the Undertaking given .....

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