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TMI Blog2019 (12) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... ctual payment is made. The petitioners are not entitled to get further interest, rather this Tribunal is of the considered view that petitioner are entitled to get the interest at the rate of 12/12.5% p.a. from the date of maturity till the date of actual payment is released to the depositors. Petition allowed in part. - C.P. NO. 320 (ALD) OF 2018 - - - Dated:- 13-9-2019 - A.R.K. Sinha, Judicial Member Suhail Ahmed Ansari, Rahul Chaudhary, Sujeet Kumar, Ms. Chhaya Gupta, Ms. Kriti Singh, Vaibhav Tripathi, Advs. and Ms. Babita Jain, PCS, for the Petitioner. R.P. Aggarwal, Sr. and Abhay Kumar Singh, Advs. for the Respondent. ORDER CP NOS. 103. 104. 105.106. 68. 69.70.71.72. 131. 03/ALD/2019 AND CP NOS. 333 AND 321/ALP/2018 1. Since in all the petitions, the prayer is common, therefore, I would like to dispose off all the petitions by this common order. 2. All the aforesaid petitions are filed by the petitioners under Section 73(4) of the Companies Act, 2013 with a prayer that the present petitions be allowed with the direction to respondent company to make repayment of the interest due from the date of maturi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.04.2014 and not to deposits accepted prior to 01.04.2014. 8. It is further submitted that even if the provision of Section 73(3) (4) are applicable to the earlier deposits also, even then this petition is not maintainable, because in view of Section 73(4), a petition can be filed only if the company fails to repay the deposit or part thereof or any interest thereon under sub-section (3), in accordance with terms and conditions agreed between the parties, but here in this case, the amount along with the agreed interest has already been paid, therefore, on this ground also the petition filed u/s 73(4) of the Companies Act, 2013 is not maintainable. 9. Thereafter, petitioner has filed rejoinder affidavit denying the facts stated by the respondent company in its reply. 10. It is stated by the petitioner in her rejoinder affidavit that it may be submitted that the maturity date of payment of FDRs was 05.08.2015 but the actual payment of principal was made after a period of about 22 months from the date of maturity on 06.06.2017. 11. Further, petitioner has also placed reliance upon the several judgments passed by Hon'ble Apex Court and Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court have been let open and any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. 18. He further submitted that since on the similar matter, the relief was granted by the Hon'ble Apex Court. Therefore, this petitioner is also entitled to get the interest at the rate of 12/12.5% p.a. from the date of maturity till actual payment is made. 19. He further submitted that so far as the penal interest is concerned, Hon'ble Apex Court in the aforesaid judgment the case of Jaiprakash Associates (supra) has not allowed the penal interest, therefore, the petitioner is not claiming the penal interest in this case. 20. On the other hand, Ld. Sr. Advocate appearing on behalf of respondent company, during the course of his argument submitted that the petition filed by the petitioner is not maintainable because the petition has been filed u/s 73(4) of the Companies Act, 2013. 21. He further submitted that since all the deposits have been made prior to 31.03.2014, therefore, all are governed by the old Company Act. He further submitted that Section 73(1) of the Companies Act, 2013 says that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vil Appeal, the Hon'ble Apex Court directed the appellant to make payment to the respondent of that Civil Appeal, the interest from the date of maturity till the date of actual payment was made at the rate of 12/12.5% p.a. 27. He further submitted that since the finding was not given on merit rather on the assurance given by the respondent's counsel, therefore, that finding is not binding upon this Court and on that basis, the petitioners of all the cases (CP Nos. 103, 104, 105, 106, 68, 69, 70, 71, 72, 131, 03/ALD/2019 and CP NO. 333 321/ALD/2018) are not entitled to get the interest. He further submitted that since that was the consent order, therefore, it is not binding upon the subsequent Judge and in this regard, he placed reliance upon a decision reported in AIR 1989 Supreme Court 38 in the case of Municipal Corporation of Delhi, Appellant v. Gurnam Kaur, Respondent. 28. He further submitted that as per Section 6 of the General Clauses Act says that, whether proceedings pending at time of repeal must be rendered ineffective unless repealing statute provides otherwise, and in this regard he placed reliance upon the decision reported in [2003] 8 ILD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the point No. 1 is concerned, since the respondent raised the maintainability of the petition filed u/s 73(4) of the Companies Act, 2013, therefore, I would like to take up this point at first. Before considering the submissions made on behalf of parties, I would to refer Section 424 of the Companies Act, 2013 and the same is quoted below:- 424. Procedure before Tribunal and Appellate Tribunal.-(I) The Tribunal and the Appellate Tribunal shall not, while disposing of any proceeding before it or, as the case may be, an appeal before, be bound by the procedure laid down in the Code of Civil Procedure,1908 (5 of 1908), but shaft be guided by the principles of natural justice, and, subject to the other provisions of this Act [or of the Insolvency and Bankruptcy Code, 2016] and of any rules made thereunder, the Tribunal and the Appellate Tribunal shall have power to regulate their own procedure. II. A mere plain reading of the provision shows that, this Tribunal while disposing off any proceeding before it, shall be guided by the principle of natural justice subject to the other provisions of this Act or of Insolvency and Bankruptcy Code, 2016 and not by the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itors prior to or after 1.04.2014. The remedies cannot be any different, neither can they be categorised or compartmentalised into two separate groups. Rule 19 of the Companies (Acceptance of Deposits) Rule 2014 clarifies the applicability of the provisions of Sections 73 74 to deposits accepted from public by eligible companies, prior to or after coming into force of the 2013 Act. I am in agreement with Mr. Sachdeva, Ld. Counsel for the petitioners that the term every deposit would mean and include all previous deposit accepted by the company. VI. So in view of the aforesaid finding, this Tribunal is of the considered view that the facts of the present cases are similar to the facts of the case of Ms. Bimla Kothari (supra) which was decided by the NCLT, New Delhi Bench. Therefore, I am unable to accept the contention of the Ld. Sr. Counsel Sh. R.P. Agarwal appearing for respondent company that since the deposit has been made prior to the enactment of Companies Act on 01.04.2014, therefore, the petitions filed by the petitioners are not maintainable, rather in the light of the aforesaid decisions, this Tribunal is of the considered view that the petitions filed by all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n behalf of Ld. Sr. Counsel for respondent that similarly in Jaiprakash Associates (supra), Hon'ble Apex Court passed the consent order and gave the concession to the depositors on the submissions made on behalf of respondent's counsel and on this ground learned counsel appearing for respondent claim that, it was the concession given to the depositors by the respondent and the depositors cannot claim it as a matter of right. 37. It was also contended on behalf of Ld. Sr. Counsel for respondent that at present the company is not in a position to give the benefit to the other depositors. 38. At this juncture, I would like to refer the argument advanced on behalf of petitioner, who in course of his argument submitted that in view of Article 14 of the Constitution of India, there is equality before law and equal protection of law of all the persons residing within the territory of India. 39. He further contended that since the benefits are given to the other depositors in the similar circumstances by the respondent, therefore, petitioners are entitled to get the same relief, which have been granted to other depositors by this Tribunal as well as by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, whereas, learned counsel for the petitioners placed reliance upon the decision of Hon'ble Supreme Court in S.E. Graphites (P.) Ltd. (supra). 45. Now in the light of the submissions made on behalf of learned counsels appearing for the parties and decisions upon which both the parties placed reliance, this Tribunal find that the respondent of this case had filed SLP before the Hon'ble Supreme Court and the Hon'ble Supreme Court granted the leave and converted the SLP into Jaiprakash Associates (supra) and after hearing the parties passed the following order :- Learned counsel appearing on behalf of the respondent submits that penal interest is also attracted under Rule 17 at the rate of 18% per annum. Since the appellant has paid within the extended period of time, we do not agree to the same. It is, therefore, made clear that all amounts of interest at the rate of 12/12.5% per annum from the date of maturity till the actual payment should be released to the depositors notwithstanding any other impediment in the way. The amount to be disbursed to the depositors should be made within a period of twelve weeks from today. The appeals are dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... octrine of merger and in Jaiprakash Associates (supra) leave to appeals was granted and SLP was converted into Civil Appeal, therefore, finding given by the Hon'ble Supreme Court in Jaiprakash Associates (supra) is binding upon this Tribunal, therefore, I find, no force in the contention raised on behalf of respondent company that since it was the consent order, therefore, it is not binding upon the Sub-ordinate Court or Tribunal in view of the decision reported in AIR 1989 Supreme Court 38 in the case of Gurnam Kaur, (supra). In my view, the decisions upon which the respondent placed reliance the facts of that decisions are different from the facts of the case in hand, therefore, that would not affect the submissions of the petitioners and the decisions upon which the petitioners placed reliance. 49. At this juncture, I would also like to refer the contention raised on behalf of Ld. Sr. Counsel appearing for respondent that this Tribunal vide order dated 23.10.2017, regularized the belated payment, therefore, on this ground also the petitioners are not entitled to get the interest from the date of maturity till the date of actual payment is made. 50. In the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, 104, 105, 106, 68, 69, 70, 71, 72, 131, 03/ALD/2019 and CP Nos. 333, 320 321/ALD/2018, who are depositors, are entitled to get the interest at the rate of 12/12.5% p.a. from the date of maturity till the date of actual payment is released to the petitioners/depositors. 55. Accordingly, it is therefore ordered that CP Nos.103, 104, 105, 106, 68, 69, 70, 71, 72, 131, 03/ALD/2019 and CP Nos. 333, 320 321/ALD/20I8 are hereby allowed. 56. The petitioners in CP Nos. 103, 104, 105, 106, 68, 69, 70, 71, 72, 131, 03/ALD/2019 and CP Nos. 333, 320 321/ALD/2018, who are depositors, are entitled to get the interest at the rate of 12/12.5% p.a. from the date of maturity till the date of actual payment is released to the petitioners/depositors. 57. The respondent company is directed to make the payment to the petitioners at the rate of 12/12.5% p.a. from the date of maturity till the date of actual payment is released to the petitioners/depositors within the period of twelve (12) weeks from today. If the respondent fails to make the payment within aforesaid period, then petitioners/depositors are at liberty to get the amount through the process of the Court on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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