2021 (5) TMI 783 - Tri - Companies Law

Maintainability of petition - interest bearing Fixed Deposit - seeking repayment of the Deposit due along with interest due - it is the case of Respondent that the present Petition is not maintainable since the Petition under Section 73(4) can only be filed by a Member of the Company and the Petitioner has not annexed any proof with respect to his Membership in the respondent company - HELD THAT - The Section 73(4) of Companies Act 2013, under which the present petition has been filed, also comes under Chapter 5 of the Companies Act 2013. Therefore, by virtue of Section 76(2) of Companies Act 2013, the provisions regarding filing of an application by a depositor before this Tribunal shall be mutatis mutandis applicable to public i.e., non-member of the company, from whom the deposit is accepted - there are no force in the plea raised by the Respondent that the Petitioner has not supplied copy to the RoC and RD and no report has come from them. Since the Rule 73(6) of NCLT Rules 2016 stipulates this requirement only in respect of the applications filed under sub-section (2) of section 76 and under sub-section (2) of section 74 of the Companies Act, 2013. The Petitioner has been successful in establishing default made by the Respondents - Application allowed.

Issues:
1. Maintainability of the petition under Section 73(4) of the Companies Act, 2013.
2. Jurisdiction of the National Company Law Tribunal.
3. Compliance with the requirements for deposit acceptance under the Companies Act, 2013.
4. Allegations of default by the respondent company.
5. Relief sought by the petitioner and decision of the tribunal.

Issue 1: Maintainability of the petition under Section 73(4) of the Companies Act, 2013:
The petitioner filed a petition under Section 73(4) against the respondent company seeking repayment of a fixed deposit. The respondent objected, claiming the petition was not maintainable as it was not filed by a member of the company. However, the tribunal held that when deposits are accepted from the public, provisions of Section 76 come into play, which allows non-members to file such petitions. Section 76(2) mandates that Chapter 5 of the Companies Act, 2013 applies to the acceptance of deposits from the public, making the petition maintainable.

Issue 2: Jurisdiction of the National Company Law Tribunal:
The petitioner established that the respondent company, a private limited company, fell under the jurisdiction of the National Company Law Tribunal. The company's details, including its incorporation under the Companies Act, 1956, and its registered office in New Delhi, were presented. This information confirmed the tribunal's jurisdiction to adjudicate on the matter.

Issue 3: Compliance with the requirements for deposit acceptance under the Companies Act, 2013:
The petitioner provided details of a fixed deposit made with the respondent company, along with allegations of partial interest payment and subsequent non-payment upon maturity. The respondent raised objections, citing non-invitation of deposits from company members as required under Section 73(2). However, the tribunal noted that the issuance of fixed deposit receipts to the petitioner, a non-member, was undisputed. It emphasized the applicability of Section 76, which governs acceptance of deposits from the public, overriding Section 73 in this context.

Issue 4: Allegations of default by the respondent company:
The respondent company admitted to part payment of interest but failed to provide a satisfactory explanation for the outstanding amount upon maturity. Despite claiming potential assets to cover liabilities, no payment was made to the petitioner. The tribunal found the respondent in default and ordered the release of the full maturity amount of the fixed deposits along with interest.

Issue 5: Relief sought by the petitioner and decision of the tribunal:
The petitioner sought repayment of the fixed deposit along with interest and appropriate orders from the tribunal. The tribunal, after considering submissions from both parties, ruled in favor of the petitioner. It directed the respondent company to release the full maturity amount of the fixed deposits to the petitioner, inclusive of interest. The tribunal also specified the interest rates to be applied until the realization of the amount, granting the relief sought by the petitioner.

This comprehensive analysis covers the key issues addressed in the judgment, detailing the arguments presented by both parties and the tribunal's decision on each matter.

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