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TMI Blog2020 (7) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... giving a reasonable hearing opportunity to the Appellant based on written submissions made by the appellant (in Company Petition, rejoinder, Addl. Evidences and Arguments); and b) To deliberate and dispose the Interim Application of the Appellant on merit, filed for cross examination of R-2 to R-4 under Section 424(2) of the Companies Act, 2013 in the interest of justice. OR c) To forward the Company Petition File (Petition, Rejoinder, Additional Evidences, Cross/Summon application and Written Arguments) to the Special Court to adjudicate whether offense is established against Respondents under Section 74(3), 75 and 447 of the Companies Act, 2013 and further decision on punishment as the Special Court may think fit. 3. To pass an order that observations of the National Company Law Tribunal in Para 8 of the final order that several proceedings are pending and property was constructed when advance was made are invalid and devoid of merit. 4. To pass any other order(s) deem fit by this Hon'ble Appellant Tribunal. 2. The facts of the case are that the appellant booked a flat with Respondent No.1 and gave Rs. 48.99 lakhs in June and July, 2012 against booking of Unit No.G-402 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advance to the Respondent 2 under the definition of deposits in the Companies Act 2013 can also seek justice against the Respondent 1 and its Directors. vi) To allow losses and damages for an amount of Rs. 2 Crores, to compensate the actual loss and sufferings of the Petitioner, to be recovered from the Respondents in accordance with the Section 75(1). vii) That such further orders be passed as the Tribunal deem fit in the circumstances of the case. 4. The appellant stated that he also had filed complaint under Section 21 of the Consumer Protection Act, 1986 before the National Consumer Disputes Redressal Commission, New Delhi on 19.6.2015. 5. Respondent filed their reply and stated that the money given against a real estate is not included in the term of 'Deposit' as per Rule 2(c)xii) of the Companies) Rules, 2014. Respondent stated that the appellant has filed a case before the National Consumer Disputes Redressal Commission and similar relief has been sought. Respondent stated that criminal case has been filed by 1st respondent against the appellant and the petition filed by the appellant is counterblast to the said case and other cases. Respondents stated that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere not considered by NCLT. Appellant stated that even if few facts in the pendency of the case before NCDRC and company petition at NCLT are common, dismissal of petition is against the principle/law defined by the Apex Court in various judgements that civil and criminal remedy can be sought separately. Appellant stated that pendency of case at NCDRC has no conflict with Company Petition as appellant had sought punishment under Company Law for offense on appellant's deposit in the Company Petition against 1st respondent and accused directors 2nd to 3rd respondent. Lastly the appellant prayed that the appeal may be allowed and judgement dated 20.11.2018 be set aside and detailed/reasoned order on merit on all issues raised in the company petition and to adjudicate the matter by giving a reasonable hearing opportunity to appellant or the company petition file be forwarded to Special Court to adjudicate whether offense is established against Respondent under Section 74(3), 75 and 447 of the company Act, 2013 and further decision on punishment as the Special Court may think fit etc. 9. Appellant stated that the observations of the NCLT that numerous cases are pending is invalid and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dismissed. 12. Respondent stated that the appellant has filed a Complaint under Section 21 of the Consumer Protection Act, 1956 and the appellant cannot avail another remedy for similar cause of action. Respondent staed that Hon'ble Supreme Court of India in the case of Steel Authority of India Ltd, Bhilai Steel Plant, Bhilai Vs CERC & Others 2014 SCC Online APTEL held that "We hold on principle that the Appeal is not maintainable when the Review is pending before the Regulatory Commission on the same issues". Respondent stated that when the case is pending before the NCDRC, New Delhi, the appellant cannot be allowed to agitate the same before this Tribunal on the same cause of action. Respondent stated that the NCLT has rightly dismissed the petition. 13. Rejoinder have been filed by the appellant who reiterated the contents of the appeal and the company petition. 14. We have heard the parties and perused the regard. 15. Before we proceed further we may put on record that at the time of hearing firstly both the parties were given an opportunity to settle the matter out of court. But both the parties stated before the Appellate Tribunal that they could not reach to a settleme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion defined in the Deposit Rules for transaction by companies against immovable property are not met, appellant's advance is deposit under Section 2(31) of the Companies Act, 2013. Respondent argued that the respondent have lawfully complied by all the provisions of Companies Act, 2013 and the Rules of the Companies (Acceptance of Deposits) Rules, 2014. Respondent argued that the appellant has been asked to take over the possession of the property. Respondent stated that the appellant is in the habit of filing cases against the respondent and the numerous cases are pending between the parties. Respondent argued that they have obtained necessary approvals and permissions in terms of the Agreement to deal in the properties for which the money was taken. Respondent further argued that the appellant had paid the amount against booking of flat and the possession has been offered to him and the amount has been utilized in constructing the flats. Respondent further argued that they have not breached the law i.e. Section 73 and 74 of the Companies Act, 2013. 19. We have heard the parties on this issue. We note that the appellant had raised this issue in his Company Petition stating that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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