TMI Blog2020 (7) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... he Rule 2(c)(xii) of the Companies (Acceptance and Deposits) Rules, 2014 and whether the Tribunal has the jurisdiction under the Companies Act, 2013 - Appeal allowed by way of remand. - COMPANY APPEAL (AT) No.37 of 2019 - - - Dated:- 24-6-2020 - Justice Jarat Kumar Jain Member (Judicial), Mr. Balvinder Singh Member (Technical) and Dr. Ashok Kumar Mishra Member (Technical) Mr. Arpit Agarwal, Appellant in person. Mr. B.P. Singh and Ms Geetanjali Tyagi, Advocates for Respondent ORDER The present appeal has been filed by the appellant under Section 421 of the Companies Act, 2013 against the judgement dated 20th November, 2018 passed by the National Company Law Tribunal, New Delhi in C.P. No.234(ND)/2017. The appellant has sought the following relief: 1. Allow the appeal and set-aside the order dated 20.11.2018 passed by the National Company Law Tribunal in CP No.234(ND)/2017. 2. Direct the National Company Law Tribunal Either a) To pass a 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 the Appellant based on written submissions made by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (Respondents 2 and 3) with imprisonment of seven years alongwith the fine of Rs. two crore rupees on each Director in accordance with the Section 74(3) of the Companies Act, 2013. iii) To pass an order that deposits had been accepted by Respondents 1 with the intent to defraud the depositor and for fraudulent purposes and hence, to pass orders against the Respondents 2, 3 and 4 as the Tribunal deem fit in the circumstances of the case in accordance with the Section 75(1) of the Companies Act, 2013 read with the Section 447 of the Act. iv) To pass order that the status of the petitioner is a Depositor as defined in the Rule 2(d) of the Companies (Acceptance of Deposits) Rules, 2014 and to pass an order to allow the Petitioner to file any further suit, proceedings or other action under Section 75(2) including but not limited to further approach Competent Authorities i.e. Reserve Bank of India, National Company law Tribunal, SEBI etc under the provisions other than those mentioned herein this petition. v)To cause a public announcement/advertisement so that other depositors who have paid advance to the Respondent 2 under the definition of deposits in the Companies Act 2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that 2nd and 3rd respondents had induced the appellant to pay advance with the intent of defrauding the amount and based on fraudulent representation that complete property alongwith approvals and clearances shall be delivered by March, 2013 and that property is in a pure residential complex. Appellant stated that false property complex layout was shown to him and actual lay out had a large commercial sub-complex also. Appellant stated that respondents had started other project by incorporating 5th Respondent and utilised his funds. Appellant stated that the property was never delivered to him. 8. Appellant stated that Companies Act, 2013 does not allow a Private company to accept or hold deposit from public. Appellant stated that since specific conditions defined in the Deposit Rules for transaction by companies against immovable property are not met, therefore, the appellant s advance is Deposit under Section 2(31) of the Companies Ac, 2013. Appellant stated that allegations under Section 2(31), 74(3), 75 and 447 of the Companies Act, 2013 were duly supported by numerous legal averments, evidences and facts which were not considered by NCLT. Appellant stated that even if fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was no contention of the appellant before the NCLT that since specific condition 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 stated 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 stated 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. 11. Respondent stated that the appellant filed a criminal complaint with SHO, Sector 71, Noida on 28.02.2015 against the respondent thereby levelling various charges including not handing over the possession. The police after proper investigation and inquiry found the allegations to be baseless and fabricated and submitted final opinion in all complaints. Lastly Respondent stated that the NCLT has rightly dismissed the petition and stated that the appeal may be dismissed. 12. Respondent stated that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we find that all these complaints and FIR has been filed by parties against each other prior to filing of Petition before NCLT on 1.9.2017. 17. Appellant argued and stressed that the Respondent had received advance/deposit as per Section 2(31) of the Companies Act, 2013 read with Rule 2(c)(xii)(b) of the Companies (Acceptance of Deposits)Rules, 2013 in consideration for immovable property (Flat) under an agreement or arrangement, however, it fraudulently not adjusted the advance against the property in terms of the Agreement or arrangement. Appellant further argued that 1st Respondent and its directors failed to secure necessary approvals and permissions in terms of the Agreement to deal in the properties for which the money was taken. Appellant further argued that 1st Respondent is a private limited company, not allowed to undertake any deposit in terms of Section 73 and 74 of the Companies Act, 2013 and the 1st respondent has breached the law i.e. Section 73 and 74 of the Companies Act, 2013 by accepting the deposit form the appellant. 18. Respondent argued that there was no contention of the appellant before the NCLT that since specific condition defined in the Deposit R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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