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TMI Blog2018 (1) TMI 1178X X X X Extracts X X X X X X X X Extracts X X X X ..... the part of the company in complying with the directions issued by the Company Law Board in the year 2013. With this affidavit, the audited Balance Sheets for the financial years 2015-16 and 2016-17 are also attached. For how much period, the depositors would keep suffering because of such kind of the excuses by the company without any fault of theirs. The depositors have been constantly urging on the implementation of the directions passed in the order of the year 2013 of the Company Law Board. Thus this application to be without merit and the same is dismissed. However, the company is directed to pay the arrears which remain pending till date to the depositors within a period of two months from the date of this order and keep on paying the rest of the amount strictly in terms of the order dated 30.09.2013 of the Company Law - CA No.8/2016, a/w CA Nos.39/2017 And 144/2017 In CP No.27/02/2013 (Decided matter) - - - Dated:- 8-12-2017 - Mr. R. P. Nagrath, J. For The Applicant : Mr.Atul V.Sood, Advocate For The Objectors : Mr.Yash Pal Gupta, Advocate, Mr.Ajay Chhikara, Advocate, Mr.Gopal Sharma, Advocate, Mr.Ashok Sachdeva, the Authorised, Representative ORDE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fire at Unit I, Parwanoo (i) Increase in gestation period of cost recovery viz-a-viz revenues for R D expenses (j) Investment in Non Current Assets/Misc. Expenditure (k) Slow moving stock and sticky debtors 4. It was further stated that the liabilities of the company as on 31.03.2013 aggregated to ₹ 1178.40 crores. The company was statedly adopting the following measures/steps to come out from the difficult financial conditions: (a) Implementation of the Restructuring package (b) Realization of old and sticky debtors (c) Bringing back amount lent to Swift Fundamental Research Educational Society It was also stated that the petitioner company was extremely confident that after the remedial measures/steps are put in place, the applicant company shall come out of this financial mess and would be able to serve, inter-alia, the fixed deposit holders. As stated in the petition, there was outstanding fixed deposit of ₹ 49.83 crores which became due for payment as on 31.05.2013. By that time, the fixed deposit to the tune of ₹ 44.99 crores were still to mature. The company had proposed a scheme of repayment. 5. The Company Law Board s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gher education of dependent children etc. payment shall be made on priority basis to the extent of ₹ 15 lakhs as per quarter. 6. The company was also directed to adhere to certain guidelines in implementing the Scheme. It was further directed that Mr. Himanshu Jain, Director of the company shall file an affidavit of undertaking that the scheme shall be implemented without fail and any failure to comply with this order would attract penal provisions contained in Section 58A (10) and Section 274 (1) (g) of 1956 Act. 7. Now the company has filed the instant application on 27.09.2016 seeking further extension of time for repayment of deposits under Section 74 of the Companies Act, 2013 (for brevity 2013 Act ) read with Rule 11, 15 and 73 of the National Company Law Tribunal Rules, 2016 read with Section 58AA of 1956 Act. 8. It is stated that the company is engaged in the business of manufacturing of drugs and formulations and its manufacturing units are located at different places. It is stated that the company is spending ₹ 1.03 crores towards the salaries and wages. The present sale turnover of the company is ₹ 30433.29 lacs as per the balance sheet for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat out of the total number of 5575 depositors, the company received 45 objections seeking speedy payment of their deposits. Out of them, few of the objectors filed their objections in this Tribunal. 14. Registrar of Companies, Punjab and Chandigarh has filed his report dated 29.09.2016 in consultation with the Regional Director, Northern Region, Ministry of Corporate Affairs, New Delhi. It is stated in the report that the Registrar of Companies is regularly receiving complaints against the company for repayment of fixed deposits, all of which were being forwarded to the company for necessary action. In the monthly meeting of the Investors Grievances Resolution Forum (IGRF) held on 28.07.2016 the company gave an undertaking that it has not violated the Company Law Board s order. However, in the meeting held on 31.08.2016, the said undertaking was not filed. It is ultimately prayed that in view of the serious complaints of the investors against the company, the office of the Registrar of Companies, is opposing the prayer for further extension of time. 15. Objections to this application were filed by various depositors. U.C. Wadhwa filed objections on 20.02.2017. He is the fixe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e SARFAESI Act, 2002, copy of which is at Annexure A. The details of the different Banks, which are the secured creditors of the applicant company have been mentioned and the outstanding amount of the secured creditors, as on 31.12.2015 was more than ₹ 862 crores. It was stated that certain Banks have assigned their debt in favour of Edelweiss ARC. This notice was issued under Section 13 (4) of the SARFAESI Act with regard to the amount due to the consortium lenders i.e. six banks in respect of five banks and one Phoenix ARC. Description of various sale deeds, lease deeds was given in this notice, which were mortgaged with the banks and directing the company to hand over possession of the property. 21. In this application CA No.39 of 2017, fresh scheme for rescheduling the payment outstanding as on 30.06.2016 was given in detail. It was stated that for senior citizens above 60 years, the payments shall be made as per the order of the Company Law Board dated 30.09.2013 w.e.f. the date of order of this Tribunal. For rest of the depositors, different schedule of payments in the context of the amount of the FDRs has been given, seeking two years, three years, six years and per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.91 crores. 26. It is further stated that the applicant company has repaid the fixed deposit holders an amount of ₹ 69.91 crores since June, 2012, when it went into Corporate Debt Restructuring (CDR) against the secured creditors. The outstanding amount against the company for the fixed deposit holders was ₹ 99.63 crores in June 2012 which has come down to ₹ 29.72 crores as on 01.10.2016. 27. It is ultimately stated that the applicant company is making sincere efforts in discharging its obligations towards the fixed deposit holders. However, the prayer made in this application is that the applicant has already mentioned in CA No.39 of 2017, when the revised proposal was filed to make payment in respect of the senior citizen as per order dated 30.09.2013 passed by the Company Law Board from the date of order of this Tribunal and for the rest of the depositors, the company also proposed to repay as per the original order dated 30.09.2013 from the date of order of this Tribunal. 28. It is admitted that the applicant company has not made any payment to the fixed deposit holders since the institution of this application. The only amount being paid after insti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 with fine which shall not be less than one crore rupees but which may extend to ten crore rupees and every officer of the company who is in default shall be punishable with imprisonment which may extend to seven years or with fine which shall not be less than twenty-five lakh rupees, but which may extend to two crore rupees, or with both. 30. Such a stringent provision has to be interpreted in the light of the objective of safeguarding the interests of the fixed deposit holders. When once the company had sought the sanction of the scheme from the Company Law Board by bringing its financial position to its notice at the relevant time in the year 2013 and got the relief of huge extension, there is no reason to accept the plea for further extension, especially as prayed in the latest application undertaking to abide by the original scheme, but with effect from the date of order of this Tribunal. The Company Law Board while sanctioning the scheme of payment in the year 2013, directed the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brook Ltd. v. Manju Devi Singhania [2011] 166 Comp. Cas. 7, decided on 21.06.2011. In that case also the company applied to the Company Law Board under Section 58A (9) of 1956 Act seeking repayments. The company was directed to make payments as per the order with interest at the rate of 10% per annum beyond the date of maturity. Another application was filed before the Company Law Board for extension of time as originally fixed vide order dated 24.09.2002. Prayer was made to extend the time till March, 2008, but the Company Law Board granted time till March, 2007 vide order dated 31.01.2005. Third time again an application was filed on 12.06.2008 and the Company Law Board vide order dated 30.06.2008 extended the time till 31.05.2009. 35. Perusal of that judgment shows that the question before the Hon ble High Court of Calcutta was not whether the application for second time for seeking further extension of time was maintainable or not. The dispute raised before the Hon ble High Court was whether the original terms of grant of interest @ 10% per annum could be varied subsequently to 7% per annum. So, this judgment also does not help the applicant. 36. The other judgment is of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was ₹ 2385.06 lacs for year ending 30.06.2012 which has been constantly increasing from year to year and the figure of loss for the financial year ending 31.03.2017 came up to ₹ 36291.47 lacs. With this financial position, there seems to be no sincere effort at all on the part of the company in complying with the directions issued by the Company Law Board in the year 2013. With this affidavit, the audited Balance Sheets for the financial years 2015-16 and 2016-17 are also attached. 42. The learned counsel for the applicant, however, submits that the efforts on the part of the company has been positive as the secured creditors of the company have assigned their debts as per the assignment agreement with Asset Reconstruction Companies details of which are given in the chart Annexure A with the affidavit dated 04.09.2017 filed on 05.09.2017. These assignments are between State Bank of Hyderabad and various other Banks and other financial institutions. The agreements are ranging from 23.03.2016 to 03.04.2017 with Asset Reconstruction company and one such assignment agreement with Catholic Syrian Bank Limited is dated 30.06.2014. Copies of all the assignment agreements A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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