9911796707
TMI Blog2023 (11) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... d cannot be related to Section 42, the applicability of Section 42(6) cannot be pressed as is being sought by the Appellant in the present case. Similarly, Rule 2(vii) of the Companies (Acceptance of Deposit) Rules 2014 and its explanation are not attracted. Rule 2(vii) contemplates any amount received and held pursuant to an offer made in accordance with the provisions of the Companies Act, 2013. Validity of findings of NCLT in PARA 27 of the order - HELD THAT:- Counsel for the Appellant is right in his submission that what was observed in the aforesaid e-mail and the attachment was that the amount can come out of the sale of summit units and then to be paid to the Appellant. The said e-mail cannot be read to mean that the amount has been paid and debt has been liquidated, even the Adjudicating Authority notices that the Financial Creditor has agreed that the said sum of Rs.2.6 Crores could have been adjusted by sale of summit units. The Corporate Debtor, thus, is not supporting the observations of the Adjudicating Authority that an amount of Rs.2.6 Crores has to be paid from sale of summit units and now the new theory is being propounded that the said amount is paid and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant in Section 7 Application claim an amount of Rs.2.6 Crores as financial debt along with the interest of 24%. Section 7 application was opposed by the Corporate Debtor. The Adjudicating Authority by the impugned order dated 06.07.2022 dismissed Section 7 application holding that the Appellant failed to prove the financial debt. The Adjudicating Authority also observed that it cannot be said that a sum of Rs.2.6 Crores is still outstanding from the Corporate Debtor. Aggrieved by the order passed by the Adjudicating Authority, this Appeal has been filed. 3. We have heard Shri Naresh Jain, Learned Counsel for the Appellant and Shri Abhijeet Sinha, Learned Counsel for the Respondent. 4. Learned Counsel for the Appellant submits that an amount of Rs.2.6 Crores was given to the Respondent for allotment of share of Rs.2 Crore against the investment made by the Appellant and rest Rs.60 Lakhs was to be treated as unsecured loan. Respondent failed to allot shares to the Appellant. The amount, thus, was repayable as per Section 42(6) of the Companies Act, 2013 along with the statutory interest @12% per annum. It is submitted that the amount has not been repaid till date. It is su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 42 is not attracted. Appellant has failed to place on record any piece of evidence to prove that the sum of Rs.2.6 Crores were deposited as Share Deposit Money. Appellant has himself admitted in his application under Section 7 that there was no valid concluded agreement between the parties with respect to allotment of shares as the parties could not agree on valuation of shares to be allotted as has been pleaded in Section 7 application itself. Judgments relied by the Counsel for the Appellant are not relevant since present is not a case of payment of share allotment money as per Section 42. It is submitted that the money of Rs.2.6 Crores has been refunded and duly repaid to the Corporate Debtor, details of which has already been brought by the Corporate Debtor in Supplementary Affidavit filed on 10.04.2023. The amount has been adjusted by payment to several group companies which were owned by the Appellant s brother and father. 8. We have considered the submissions of the Counsel for the parties and perused the record. 9. Between the parties, the payment of amount of Rs.2.6 Crores is not disputed. Appellant has made the aforesaid payment to the Corporate Debtor betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s section shall be kept in a separate bank account in a scheduled bank and shall not be utilised for any purpose other than (a) for adjustment against allotment of securities; or (b) for the repayment of monies where the company is unable to allot securities xxx xxx xxx (10) If a company makes an offer or accepts monies in contravention of this section, the company, its promoters and directors shall be liable for a penalty which may extend to the amount involved in the offer or invitation or two crore rupees, whichever is higher, and the company shall also refund all monies to subscribers within a period of thirty days of the order imposing the penalty. 13. Counsel for the Appellant has also relied on Companies (Acceptance of Deposit) Rules, 2014 where in Rule 2(c) deposit has been defined as follows:- (c) deposit includes any receipt of money by way of deposit or loan or in any other form, by a company, but does not include- (i) any amount received from the Central Government or a State Government, or any amount received from any other source whose repayment is guaranteed by the Central Government or a State Government, or any amount r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the securities applied for. Explanation.- For the purposes of this subclause, it is hereby clarified that - (a) Without prejudice to any other liability or action, if the securities for which application money or advance for such securities was received cannot be allotted within sixty days from the date of receipt of the application money or advance for such securities and such application money or advance is not refunded to the subscribers within fifteen days from the date of completion of sixty days, such amount shall be treated as a deposit under these rules. [Provided that unless otherwise required under the Companies Act, 1956 (1 of 1956) or the Securities and Exchange Board of India Act, 1992 (15 of 1992) or rules or regulations made thereunder to allot any share, stock, bond, or debenture within a specified period, if a company receives any amount by way of subscriptions to any shares, stock, bonds or debentures before the 1st April, 2014 and disclosed in the balance sheet for the financial year ending on or before the 31st March, 2014 against which the allotment is pending on the 31 March, 2015, the company shall, by the 1st June 2015, either return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.2.6 Crores advanced by him to the Corporate Debtor was against any offer made by the company for private placement of shares. Counsel for the Appellant has also submitted that the judgment of this Tribunal in Pramod Kumar Sharma (supra) is not applicable. We need not enter into the above submission since we have already held that an amount of Rs.2.6 Crores was not towards any offer for private placement. 16. Counsel for the Appellant has contended that the finding returned by the Adjudicating Authority in paragraph 27 or the judgment that no financial debt is due is erroneous. In paragraph 27 of the judgment, Adjudicating Authority made following observations:- 27. In the present case, the financial assistance has been given without any agreement and there is no consideration for time value of money for the said amount. It is also evident from the email dated 9th April, 2018 that the Financial Creditor has agreed that the said sum of Rs. 2.60 Crores would be adjusted by sale of Summit Units /Flats. This is a completely different arrangement which has been suppressed by the Financial Creditor in the company petition. It cannot be said that a sum of Rs.2.60 Crores is stil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellant suppressed the fact of adjustment of the entire sum of Rs. 2,60,00,000/- (Rupees Two Crore and Sixty Lakh only) by virtue of various financial adjustments entered into between the parties herein and also to the associate and group companies of the Appellant and his family members. I say that the Appellant has suppressed the material facts and events with respect to the various verbal discussions held between the parties whereafter it was mutually agreed and decided that the said sum of Rs. 2,60,00,000/- (Rupees Two Crore and Sixty Lakh only) shall be adjusted towards numerous group companies and entities owned and controlled by the Appellant. I say that the various financial adjustments also take into account numerous payments made by the Respondent and its associate companies, to the Appellant and its group companies. Thus, in light of the agreement between the parties, consolidated adjustment of all the accounts between the parties and its group companies and entities were held. I say that while the Respondent has adjusted all the sums payable to the Appellant amounting to Rs. 2,60,00,000/- (Rupees Two Crore and Sixty Lakh only), the Appellant and its group and associ ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
