TMI Blog2020 (10) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... e complaint for lost cheque No. 070259 and the Applicant misused that cheque. The Tribunal is of the view that National Company Law Tribunal is not the correct authority to adjudicate in the matters related to the negotiable Instruments. The matter between both the parties was amicably settled as recorded in order dated 11th October, 2017 of the Hon'ble National Company Law Tribunal passed in CP No. 205(ND)/2017, between the parties along with that the Respondent failed to show any agreement to substantiate the fact that money was paid as a financial debt or that the money was paid against the payment of interest - the share application money does not fall under any of the clauses of Section 5(8) of the Code and it cannot be said to fall under the definition a debt alongwith interest, if any, which is disbursed against the consideration for the time value of money since no debt was disbursed by the Applicant to the Respondent and no time value has been attached with the share application money. Thus, since the claim is not a financial debt the present application under Section 7 of the Code is not maintainable and is dismissed with no costs. Application dismissed. - I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10,00,000.00 26.08.2011 10,00,000.00 05.11.2011 15,00,000.00 23.11.2011 15,00,000.00 13.01.2012 10,00,000.00 10.02.2012 10,00,000.00 22.03.2012 3,00,000.00 23.07.2012 5,00,000.00 Total 1,03,00,000.00 iv. The Applicant claims that the receipt of the said amount of ₹ 1,03,00,000/- (Rs. One Crore Three Lacs) was duly acknowledged by the Dr. S.K. Gupta, the then Director of Respondent as on 26.10.2015, confirming that the money of ₹ 1,03,00,000/- is received by the Respondent in the year 2011-12 in the form of share application money. v. The applicant submitted that from the bare perusal of the Balance Sheets of the Respondent for the year ended 31st March 2013 to 31st March 2018, shows that the money received from the applicant was recorded as share application money pending allot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re likely to be transferred, the Hon'ble Tribunal passed a restraining order dated 30.08.2017 restraining the Respondent from disposing off its asset. xi. The applicant submits that after restraint order was passed all the erstwhile directors and the current directors conspired and framed a scheme under which they approached the applicant and offered to refund entire amount with interest without any intention of actually doing so. Based upon such offer and assurances, the applicant agreed to withdraw his petition and made an application dated 11.10.2017 stating that the Respondent has agreed to refund the entire money with interest upto date. xii. The applicant submitted that when the application for the order of withdrawal of petition was passed on dated 11.10.2017, the Respondent started making excuses and upon continuous follow up the principal amount was repaid in the month of April 2018. For discharge of liability towards interest on such deposit a cheque bearing No. 070259 drawn on Oriental Bank of Commerce dated 27.06.2018 for ₹ 1,52,37,000/-(Rupees One Crore Fifty Two Lacs Thirty Seven Thousand Only) was issued which was prepared by Mr. Vijay Kumar Bhalla, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erified or notarized. The said petition was withdrawn by the counsel of the petitioner unconditionally on the instructions of the Applicant and not on the basis of alleged application dated 11.10.2017. That the Applicant is relying on falsehood in order to make a false case for interest payment. iii. That the parties had resolved all disputes regarding outstanding share application money of the petitioner amounting to ₹ 1.03 crores (Rupees one crore three lacs only) leading to unconditional withdrawal of the petition by the Applicant. That the respondent company has already paid the full and final amount of ₹ 1.03 crores (Rupees one crore three lacs only) to the Applicant in April, 2018 against the outstanding share application money. Sl. No. Payment Date Cheque/ RTGS Details Amount (Rupees) 1. 09.04.2018 RTGS-OW/ORBCH18099043521 25,00,000 2. 26.04.2018 Cheque No. 70246 78,00,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the Applicant had paid the money for the purpose of Share application and not as deposit or loan. That no interest was payable on share application money, further, there is no agreement between the Applicant and the Respondent to substantiate that money was paid as a financial debt or that the money was borrowed against the payment of interest. The Applicant has himself not disclosed any financial contract or interest rate in his petition or any calculation of interest amount being claimed. ix. That the present petition is not complete as stipulated in section 7(5)(a) of the Insolvency and Bankruptcy Code, 2016 and is liable to be rejected. x. That the applicant has falsely mentioned in notice of motion that no reply to demand notice has been received from Respondent, while the applicant has himself placed on record reply to notice sent by the Respondent. 3. The Applicant has filed written submissions in which he has reiterated the certain points raised by him in the petition and they are as follows: i. That since, there was no clarity regarding treatment of share application money accepted by a company under the old companies act of 1956, the central Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payments, which might have already accrued. If such an interpretation is given the very object of enacting the act would be frustrated. The Hon'ble Supreme Court in M/s. Modern Industries vs. M/s. Steel Authority of India (2010) 5 SCC 44 affirmed the view of Hon'ble High Court. IV. That the section 74(3) of the Companies Act, 2013 provides that if Company fails to repay the deposit or part thereof or any interest thereon within the time specified in sub-section (1) or such further time as may be allowed by time specified in sub-section (1) ir such further time as may be allowed by the Tribunal under sub- section (2), the company shall, in addition to the payment of the amount of deposit or part thereof and the interest due, be punishable........ 4. The Respondent has filed written submissions in which he has reiterated the certain points raised by him in the reply and they are as follows: i. That the present petition is barred by limitation. The date of default has been mentioned as the date when the allotment was not done as per law. The right to apply accrued on 16.03.2013 to the applicant. Therefore, time begins to run on 16.03.2013 as a result of which the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t' under Companies (Acceptance of Deposit) Rules, 2014: 2 Definitions. (1) In these rules, unless the context otherwise requires,__ (c) deposit includes any receipt of money by way of deposit or loan or in any other form, by a. company, but does not include: (vii) any amount received and held pursuant to an offer made in accordance with the provisions of the Act towards subscription to any securities, including share application money or advance towards allotment of securities pending allotment, so long as such amount, is appropriated only against the amount due on allotment of the securities applied for. 6. The Applicant's contention that while returning the principal amount the cheque bearing No. 070259 dated 26.06.2018 for ₹ 1,52,37,000/- was given as interest which was dishonoured whereas, the Respondent argued that the respondent company had lodged a police complaint for lost cheque No. 070259 and the Applicant misused that cheque. The Tribunal is of the view that National Company Law Tribunal is not the correct authority to adjudicate in the matters related to the negotiable Instruments. 7. The matter between both the parties was amicably set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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