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TMI Blog2024 (9) TMI 1610X X X X Extracts X X X X X X X X Extracts X X X X ..... reliefs: a. Pass an order directing an investigation into the affairs of the Respondent Companies in terms of the Section 213 (b) of the Companies Act, 2013. b. Pass an order against the Respondent(s) for committing fraud under Section 447 of the Companies Act, 2013 and as per the applicable laws; c. Pass any order this Hon'ble Tribunal may deem fit in abovementioned facts and circumstances. Averment by the Applicant 2. The Respondent No. 1 i.e India bulls Housing Finance Limited was incorporated on 28.12.2005, under the provisions of the Companies Act, 1956, having Corporate Identification Number L65922DL2005PLC136029 and the registered office of the Respondent No. 1 is situated at M-62 & 63, 1st Floor, Connaught Place, New Delhi - 110001 Also at: 448-451 Udyog Vihar, Phase -V, Gurugram, Haryana - 122001and the Respondent No. 1 is carrying on the business of housing finance institution. 3. The Respondent No. 2 is India bulls Commercial Credit Limited incorporated under the provisions of Companies Act, 1956 in 2006 having Corporate Identification Number as U65923DL2006PLC150632 and the registered office of the Respondent No. 2 is situated at Registered Office: M-62 & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d sum of Rs. 5873.29 Crores, it is pertinent to mention that the Respondents till date have usurped an amount of Rs 6150.52 Crores which, inter alia, includes Rs. 5334.41 Crores towards principal, Rs. 500.19 Crores towards interests, Rs.17.25 Crores withdrawn fraudulently by the Respondents directly from the Escrow accounts of the Petitioners in violation of the mandatory provisions of RERA Act and without any information or details of the adjustment of the same and 298.67 Crores paid in kind as transfer of total number of 528 (approximately) units in different projects from Petitioners to Respondents. It is pertinent to mention that till date that the Respondents have proceeded malafidely and fraudulently by usurping additional monies from the Petitioners which is evident from the fact they have failed to even share the details of accounts in which it has been adjusted although payments have been made in excess. 8. The Petitioner submitted that the amount of Rs. 17.25 Crores has been illegally and arbitrarily withdrawn from the Escrow Accounts since March 2019 till date i.e., after the RERA Act, came into power, which ought to have been utilised for construction purposes only. Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Petitioner under Section 7 was dismissed vide Order dated 23.05.2022 on the ground of limitation, the Hon'ble NCLAT vide its order dated 23.05.2023 set aside the Order dated 23.05.2022 and remanded the matter back for consideration before the NCLT and the same is still pending adjudication. It is submiited that the Petitioners herein filed their captioned Petition as a counterblast to the same. Furthermore, the Petitioners have also filed Additional Affidavit dated 15.05.2023 in the captioned Petition putting forth the same allegations as have already been levelled by them in the afore-stated cases pending before the Hon'ble Delhi High Court. 12. It is submitted that the Petitioner Companies have instituted the above proceedings on the exact same facts and grounds seeking similar reliefs of identical nature. A Comparative analysis of the above mentioned petitions filed by the Petitioners and the allegations levelled in the present proceedings is annexed as ANNEXURE R-1 with the Reply.. 13. Further the Respondent Companies submitted that the Petitioners also filed W.P. (Civil) No. 4865/2022 before the Hon'ble High Court of Delhi on similar facts which was dismissed vide Order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will ensure that the regulatory body, charged with the duty to protect the consumers has real time control over the sector, thus, realizing the purpose of their constitution." 17. It is submitted that to filed a joint petition by Petitioner No. 1 and 2 under Section 213(b) of the Act, the Petitioners is required a permission to present the joint petition in terms of Rule 23A (1) of the National Company Law Tribunal Rules "NCLT Rule" from this Adjudicating Authority. As per the terms of Rule 23A (2) of "NCLT Rule" such permission is granted by the Adjudicating Authority only in cases where the joining of the Petitioners is permitted by the Act. The provisions of Section 213(b) do not envisage filing of a joint petition and therefore the present Petition is liable to be dismissed on this ground alone. 18. It is submitted that nowhere in their Petition, have the Petitioners disclosed the fact that they are already embroiled in multiple litigations against the Respondents basis the same cause of Action and praying for almost identical reliefs. Analysis and Findings 19. We have heard the Ld. Counsels for the parties and perused the averments made in the application and reply filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government may direct: Provided that if after investigation it is proved that- i. the business of the company is being conducted with intent to defraud its creditors, members or any other persons or otherwise for a fraudulent or unlawful purpose, or that the company was formed for any fraudulent or unlawful purpose; or ii. any person concerned in the formation of the company or the management of its affairs have in connection therewith been guilty of fraud, then, every officer of the company who is in default and the person or persons concerned in the formation of the company or the management of its affairs shall be punishable for fraud in the manner as provided in section 447. 21. The present Petition has been filed under sub-section (b) of Section 213 of the Companies Act, 2013 and as per the said Section the Petitioner is required to satisfy this Tribunal that there are circumstances suggesting that the business of the Respondent companies is being conducted with intent to defraud its creditors, members or any other person or otherwise for a fraudulent or unlawful purpose, or in a manner oppressive to any of its members or that the company was formed for any fraudulent o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : As regards the allegation of Supertech that Indiabulls and its directors forced it to enter into terms in relation to 80 loans which were illegal, one sided, non- negotiable and detrimental to their interest etc., Indiabulls have submitted copies of the loan agreements for all the 80 loan accounts including addendums thereto. It is observed that all the terms and conditions have been duly signed and accepted by Supertech. Thus, the parties based on their commercial wisdom have entered into contractual obligations and commitments on their own choice and free will. Therefore, allegations of illegality now alleged by Supertech cannot form basis of any relief sought by Supertech in its representation dated April 06, 2022. It is observed that Indiabulls have provided relevant information with respect to the loan accounts and details of the adjustments made by it with respect to payments made by Supertech. Indiabulls has also clarified the basis of adjustment of Rs. 707 crore paid by Supertech, towards upfront interest payment as per the terms and conditions agreed upon. Further Indiabulls has assured that adjustment of Rs. 9.75 crore received from Supertech would be made by it and p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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