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TMI Blog2019 (1) TMI 1509X X X X Extracts X X X X X X X X Extracts X X X X ..... n the appellate tribunal expressly said that it had found no grounds to extend the period beyond 31st December, 2016 . It is clear that the gravamen of the charge on which the prosecution under the penal clause contained in Section 74(3) is to be founded has to be to the effect that the company to be prosecuted had failed to abide by its liability under Section 74(1) or within the extended period granted by the tribunal on a petition to that effect. Since the order of the tribunal does not attain finality inasmuch as there is a remedy of appeal available there against, the provision contained in Section 74(2), in so far as it refers to the time allowed by the tribunal will have to be construed as the time allowed by the tribunal alo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commencement or from the date on which such payment are due, with the Registrar a statement of all the deposits accepted by the company and sums remaining unpaid on such amount with the interest payable thereon along with the arrangements made for such repayment, notwithstanding anything contained in any other law for the time being in force or under the terms and conditions subject to which the deposit was accepted or any scheme framed under any law; and (b) repay within one year from such commencement or from the date on which such payments are due, whichever is earlier. (2) The Tribunal may on an application made by the company, after considering the financial condition of the company, the amount of deposit or part thereof and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or from the date on which the payments were to fall due, whichever was earlier, the said period prescribed in Section 74(1) (b) having been later revised and modified to three years in terms of the Companies (Amendment) Act, 2017. The law, however, would permit a company under the statutory liability to seek enlargement of time for discharge of liability to pay by making an application before National Company Law Tribunal ( the tribunal ) under Section 74(2). The default in payment of the requisite amounts either within the statutorily prescribed period or by close of the extended time allowed by the tribunal attracts penal clause contained in Section 74(3) of the Companies Act, 2013. 3. It is undisputed case on both sides that the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zed officer of ROC), the pre-summoning inquiry was dispensed with. Upon consideration of the facts set out in the complaint, and the documents filed therewith, taking note of the dismissal of the petition under Section 74(2) of the Companies Act, 2013 by the tribunal, the Additional Session Judges took cognizance by order dated 20.09.2016 and summoned the company and five of its officers as accused to appear and answer the charge for the offence under Section 74(3) the Companies Act, 2013. 5. These two petitions seek to question the validity of the above said summoning order passed by the criminal court on the complaint of the respondent ROC, the company being the petitioner in Crl.M.C.4184/2016 and its Chief Finance Officer (CFO) being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 the appellate tribunal, inter alia, directed that the request of the tribunal in the order dated 04.07.2016 to the ROC to take action under Section 74(3) of the Companies Act, 2013 was stayed . This order again would be of no consequence inasmuch as the complaint had already been filed and the matter was within seisin of the competent criminal court, it being beyond the jurisdiction of the appellate tribunal to inhibit any action on the part of the criminal court on such complaint. At the most, such stay could be construed as inhibiting the ROC from prosecuting the said complaint further. 8. What is of import and consequence, however, is the order dated 03.11.2016 of the appellate tribunal. The concluding paragraph of the said order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016, as was allowed earlier. 10. It is the submission of the petitioners, and this court finds substance in the same, that by virtue of the order dated 03.11.2016, the period of compliance with the requirement of Section 74(1) of the Companies Act, 2013, as extended earlier by the tribunal in the company petition in terms of order dated 11.03.2016 stood further extended upto 31.12.2016 pursuant to directions of the appellate tribunal in appeal. This remains the factual position as shown by careful reading of the final order in appeal passed on 31.01.2017, wherein the appellate tribunal expressly said that it had found no grounds to extend the period beyond 31st December, 2016 . 11. It is clear that the gravamen of the charge on whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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