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TMI Blog2020 (3) TMI 1212X X X X Extracts X X X X X X X X Extracts X X X X ..... cial creditor filed application under section 7 of the Insolvency and Bankruptcy Code, 2016 ("IBC" in short) before the Adjudicating Authority (National Company Law Tribunal), New Delhi-II in I. B. No. 403/ND/2019. The application has been dismissed on July 25, 2019 with liberty given to the respondent-financial creditor to revive the application, if in spite of the financial creditor fulfilling formalities to get refund the corporate debtor fails to refund. 2. Thus, this appeal has been filed by the corporate debtor mainly challenging the last part of the impugned order in paragraph 11 of the impugned order. 3. A few facts may be referred to understand the dispute. The financial creditor claimed in the section 7 application that they had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized as a financial debt, the Adjudicating Authority considered the Companies Act as well as Companies (Acceptance of Deposits) Rules, 2014 and concluded in paragraph 10 of the impugned order as under : "10. It is clear from a reading of section 42 of the Act and the Deposit Rules that if the shares are not allotted within 60 days of the receipt of the money the share application money has to be refunded and if the refund does not take place within 15 days from the expiry of the 60 days' time limit, then the share application money will be treated as a deposit. On the non-allotment of shares, after the expiry of the time limit of 75 (60 + 15) days the share application money will be a deposit advanced to the company, which has to be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be said that it is the respondent's fault that the refund of the money has not been made. Allowing this application in such circumstances would amount to allowing the applicant to take the benefit of its own wrong. Since the respondent is willing to refund the money even now provided the procedure as prescribed by RBI as followed, the applicant is hereby directed to fulfil the formalities to get the refund, within three months from the date of this order. If the respondent fails to refund the money, the applicant has the liberty to revive this application. Thus, the application is dismissed, with liberty to the applicant to revive the application if the refund is not made even after the applicant complies with the required formalities." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these necessities whether the application making claim is properly made or whether the appellant has justification for not refunding the money. Once the Adjudicating Authority came to the conclusion that default has not been proved, the only option it had was to reject the application and the conditional offer could not have been gone into. We find that the underlined portion of the impugned order (referred to supra) where it gives directions to fulfil requirements and liberty to revive cannot be maintained. We set aside the portion of the impugned order in paragraph 11 which reads : "Since the respondent is willing to refund the money even now provided the procedure as prescribed by RBI as followed, the applicant is hereby directed to fu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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