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TMI Blog2017 (3) TMI 1716X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 75 of the Companies Act 2013. Further if it comes to the notice of the Registrar of the Companies or the Central Government, that the business of the company was being conducted with intent to defraud its creditors or any other person or otherwise for a fraudulent or unlawful purpose, they may investigate into the affairs of the company either under Section 210 or 213 of the Companies Act 2013. It is also open to the appellant to move an application under clause (b) of Section 213 of the Companies Act 2013, if the circumstances so suggest that the business of the company was being conducted with intent to defraud its creditors and other persons. It is noted that failure to repay the deposit accepted by the company or to pay interest thereon is also disqualification for appointment of directors in terms of Section 164(2)(b) of the Companies Act, 2013 and any director who incurs any of the disqualifications specified in section 164 vacates the office of the director. Registrar of Companies may examine this aspect in case the Company fails to repay the dues by 31.03.2017 as already allowed by the Tribunal. - Company Appeal (AT) No. 11 of 2016 - - - Dated:- 2-3-2017 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (1) or 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 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. 3. The provision of section 74 came into effect from 1st April 2014. As per the provision, the respondent company was liable to pay the matured amount with interest to the depositors which had matured prior to 1st April 2014. The other deposits which were accepted by the company before 1st April 2014 but matured later, under sub-section (1) of Section 74, the company was liable to pay such deposits along with interest within one year from the date of such commencement, i.e. by 31st March 2015 or date on which such payment were due, whichever was earlier. 4. Admittedly, the respondent company failed to pay the depositors the amount rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposing of the main Company Petition. 9. It is further submitted that there is no specific direction issued by the Tribunal directing the company to utilize the sale proceeds of the ten cement plants towards the payment to the depositors as per sub-section (1) of Section 74 of the Act. There is no such undertaking given by the company that it will not utilize the fund for other purpose. 10. On 28th November 2016, the Court directed the company to file affidavit providing mode of payment. Pursuant to the same an affidavit was filed by the company which was noticed by this Court in its order on 8th December 2016, as quoted below: - Pursuant to this Court's Order dated 28th November 2016, an affidavit has been filed by the respondent, relevant portion of which reads as follows:- NAMES OF THE CEMENT PLANTS, PLACE AND CONSIDERATION 6. The Respondent is in process of selling its business of manufacture and sale of cement and clinker which comprises of the following cement plants and, apart from transfer of plants, the same constitutes transfer of licenses, clearances, etc. a. Baga Plant in the State of Himachal Pradesh, b. Bagheri Plant in the State of H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tra Tech Cement Limited ((Transferee Company) as a going concern on a slump exchange basis. The Transferor Company and the Transferee Company are public limited and listed companies. XXX XXX XXX BANK DETAILS FOR REPAYMENTS OF THE FIXED DEPOSITS 26. The bank details of the account in which the sale proceeds will be deposited for the purpose of repayment to the depositors is bank account bearing No. 011125000000718 with IDBI Bank, Red Cross Road, New Delhi-110001. The repayment to the depositors shall be made at one go upon receipt of the funds, save and except the hardship cases which may arise. PROPOSED DATE TO COMMENCE REPAYMENT OF FIXED DEPOSITS 27. The Respondent intends to start paying the depositors as soon as the Respondent receives funds from the Transferee Company pursuant to the approval of the scheme and such repayment is expected to commence around 25.03.2017 and the same is expected to conclude by 30.03.2017. 28. The details of the outstanding payments, i.e. principal as well as interest, have already been submitted with the Registrar of Companies in terms of Rule 16 of the Companies (Acceptance of Deposits) Rules, 2014. In view of aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany has not shown any interest in paying part of the deposit with interest to depositors either during the pendency of the Company Petition or this appeal. Learned Counsel for the Respondents have also informed that they will pay the dues by 31st March 2017. 13. We make it clear that if the dues of depositors with interest is not paid by the Company by 31st March 2017, the Registrar of the Companies, NCR and Haryana will take steps to file petition under sub-section (3) of Section 74 of the Act 2013 before the Special Judge to punish the company and its directors and members and every officer of the company, whoever is in default. It will be open to the appellant and other depositors to sue the Company, its directors officers for damages and fraud under Section 75 of the Companies Act 2013. 14. Further if it comes to the notice of the Registrar of the Companies or the Central Government, that the business of the company was being conducted with intent to defraud its creditors or any other person or otherwise for a fraudulent or unlawful purpose, they may investigate into the affairs of the company either under Section 210 or 213 of the Companies Act 2013. It is also open t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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