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TMI Blog2024 (9) TMI 1610X X X X Extracts X X X X X X X X Extracts X X X X ..... RBI. Even otherwise, the issue essentially is a matter of reconciliation of accounts between lender-borrower and to be dealt with as per the grievance redressal mechanisms in place. However, Indiabulls is advised to complete the adjustment of Rs. 9.75 crore mentioned above and inform the position to Supertech with in 15 days of receipt of this order. The averments made in the Petition by the Petitioners are not supported by any material documents in order to substantiate such allegations. The documents filed by the Petitioner along with the Petition would show that the allegations made by the Petitioner are not corroborated with the documents filed therewith. Prima facie, the Petitioner has miserably failed to make out a case under Section 213(b) of the Companies Act, 2013 and also failed to satisfy this Tribunal that the affairs of the Respondent Company have been conducted in a fraudulent manner or unlawful purpose and on the said count itself this Petition is liable to be dismissed. On the perusal of the documents submitted by the Petitioner and the in view of the discussion made, the Petition as filed by the Petitioner under Section 213 of the Companies Act, 2013 stands dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Petitioner to approach this Tribunal being aggrieved of the mala fide actions of the Respondent Companies, the business of which companies is being conducted with for fraudulent and unlawful purposes, and where the Respondent companies have defrauded the petitioners and more so the public at large. 5. The instant Petitioner is being preferred praying for directions that an investigation be carried out into the fraudulent and unlawful affairs of the Respondent companies as they have and still continue to misappropriate, bungle and usurp the huge amounts of public monies including but not limited to the amounts to the tune of Rs.277.23 crores in excess of what was due towards the loans advanced to the Petitioner, which was held by the Petitioners in trust of its customers i.e. homebuyers of different projects. Further submitted that the Respondents have also fraudulently usurped a huge amount from the escrow accounts which is against the statutory provisions. 6. Petitioners submitted that the instant matter is squarely covered by the ratio underlined by the Hon'ble Supreme Court of India in Barium Chemicals Ltd. V. Company Law Board 1996 36 Comp Cas 639 as the amounts usurp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the construction of the projects. 9. The Petitioner has submitted the following documents in relation to the facts above mentioned a) Copies of some of the loan agreements by way of illustration b) Copies of some of such escrow agreements. c) Copy of the calculation sheet outlining the fraudulent deduction of Rs. 707 crores by the respondents. d) Copy of Bank Statements indicating the withdrawal of amounts from the Escrow Accounts. e) Copy of statement of accounts along with its summary. f) Copy of order passed by Haryana Real Estate Appellate tribunal dated 01.05.2019. g) Copy of master data, Article of Association and Memorandum of Association of Respondent Company. Reply of the Respondents Companies 10. Per contra, the Respondent Companies through his reply submitted that the Company Petition is liable to be dismissed as the Petitioners being the borrower of the Respondent, as a counterblast to the recovery proceedings initiated by the Respondents under Section 13(4) of the SARFAESI Act dated 23.11.2020 and 24.11.2020 coupled with the fact that an Original Application has been filed the Respondent No.2 before Hon ble DRT-II, New Delhi on 28.03.2022 and the same is still pend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MP (Comm.) 89/2022 which is pending with respect to the same issue of reconciliation before the Hon ble Delhi High Court. 14. The Respondent through its Ld. Council submitted that the main ingredient of Section 213 of the Companies Act, 2013 is to show that the business of the Company is being conducted with intent to defraud its creditors, members or any other person or otherwise for a fraudulent or unlawful purpose which is oppressive to any of the members of the Company. It is stated that the Petition as filed by the Petitioners, it is clear that the only grievance that Petitioners have from the Respondent. 15. It is submitted that the dispute between the parties in this matter is primarily with respect to the differences arising out of reconciliation of accounts and the same has already been looked into by the RBI which is Sectoral regulator of the Respondent. In its capacity as the Sectoral Regulator, the RBI has been vested with the necessary powers to look into the allegations levelled by the Petitioners and basis the evidence adduced before it, a clean chit was given to the Respondents by the RBI vide its order dated 09.09.2022. 16. It is submitted that once the dispute wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Affairs in other cases The Tribunal may,- (a) On an application made by- (i) not less than one hundred members or members holding not less than one-tenth of the total voting power, in the case of a company having a share capital; or (ii) not less than one-fifth of the persons on the company's register of members, in the case of a company having no share capital, and supported by such evidence as may be necessary for the purpose of showing that the applicants have good reasons for seeking an order for conducting an investigation into the affairs of the company; or (b) On an application made to it by any other person or otherwise, if it is satisfied that there are circumstances suggesting that- i. the business of the company is being conducted with intent to defraud its creditors, members or any other person or otherwise for a fraudulent or unlawful purpose, or in a manner oppressive to any of its members or that the company was formed for any fraudulent or unlawful purpose; ii. persons concerned in the formation of the company or the management of its affairs have in connection therewith been guilty of fraud, misfeasance or other misconduct towards the company or towards any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.2023 in para 3 submitted the decision of the Hon'ble High Court of Delhi which was disposed off by the Hon'ble High Court of Delhi vide order dated 20.05.2022 with the following directions: In above circumstances, now that Petitioners have approached RBI, in the opinion of the Court, Petitioners should now await the outcome of their complaint. RBI is fully empowered to examine the compliant and take a decision thereon in accordance with law. Whether indeed an investigation is required in light of the allegations made by the Petitioners - is for RBI to decide. There is no compelling reason for the Court to undertake such exercise and grant prayer (a) as sought for in the present petition. In case RBI finds no merit in the compliant and decides not to investigate into the affairs of Respondents No. 2 and 3, Petitioners would then have the liberty to pursue their remedies as are available under law. The Court is not expressing any opinion on the Petitioners' compliant and RBI shall niake an independent assessment uninfluenced by any of the observations made herein. It is expected that RBI shall take a decision not later than 8 weeks from today. 24. Further the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the adjustment of Rs. 9.75 crore mentioned above and inform the position to Supertech with in 15 days of receipt of this order 25. The above-mentioned order indicates that the RBI has already examined the issues raised by the petitioners. The RBI also found that the issue raised by Supertech is essentially a matter of reconciliation of accounts. The RBI's order has already been challenged before the Hon ble Delhi High Court as Writ Petition (Civil) bearing no. 4491 of 2023. However, it is still pending before the Hon ble Delhi High Court, and the next hearing date for the Writ Petition (Civil) bearing no. 4491 of 2023 is listed on 29.02.2024. 26. The Petitioner Counsel was unable to explain the provision of law with respect to his locus standi to file this application under Section 213 of Companies Act, 2013. 27. However, even on merits, we find that the averments made in the Petition by the Petitioners are not supported by any material documents in order to substantiate such allegations. The documents filed by the Petitioner along with the Petition would show that the allegations made by the Petitioner are not corroborated with the documents filed therewith. Prima facie, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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