Ashok Kumar Mishra, (Technical Member).
1. C. P. No. 76/BB/2017 is filed by Dr. Lohith Shivateja, under section 73(4) of the Companies Act, 2013 read with Rule 73 of the National Company Law Tribunal Rules, 1016, by, inter alia, to a direction to the company to repay the petitioner a am of Rs. 15,00,000 (rupees fifteen lakhs only) along with Rs. 6,44,696 rupees six lakhs forty four thousand six hundred and ninety six only), being the interest accrued till date to the depositor, etc.
2. The brief facts as mentioned in the application are as follows :
(1) M/s. Anytime Medicare services P. Ltd., is a company incorporated under the Companies Act, 1956, on March 27, 2012 with ON U85100KA2012PTC063243 and having its registered office at 301, 6th Main Road, S. T. Bed Layout, Koramangala, Bangalore-560 034, within the jurisdiction of this Hon'ble Tribunal.
(2) The petitioner (depositor) was working in the company as chief medical officer during the period February, 2014 to April, 2016. During the said period, the company lured the depositor to invest in the company for development of the medical centre of the company in Murugeshpalya, Bengaluru. Accordingly, the petitioner invested a sum of Rs. 15,00,000 (rupees fifteen lakhs only) in the company based on the promises made by the company. It is also alleged that directors promised the depositor (the petitioner) that all the funds will be utilized to develop Murugeshpalya business. Out of the revenue generated by the company, profits will be shared with the depositor and shares will also be allotted to the depositor for the amount invested in the company. The company had also promised to give return on the amounts advanced by the depositor.
(3) However, in spite of various assurances, the company had failed to repay the amounts borrowed from the depositor. Thereafter, on the legal advice received by the depositor and on realizing that the amounts advanced by the depositor would be considered as "deposit" by virtue of the provisions of the Companies Act, 2013, the depositor lodged a complaint with the Registrar of Companies for violation of section 73 of the Companies Act, 2013.
(4) They have also made that the Registrar of Companies vide letter dated September 1, 2016 informed the depositor about the response filed by the company. GPA holder Dr. Lohith Shivateja, requesting the Registrar of Companies to take action against the company for non-refund of the deposits and for violation of the provisions of the Companies Act, 2013.
(5) Even no payments are being paid as promised by the company. The petitioner gone issue the demand notice dated August 29, 2016 for repayment of the amounts lent to the company with an interest of 18 per cent, per annum within a period of 21 days.
(6) The company instead of repaying the deposit to the depositor, issued a reply to the legal notice vide reply letter dated October 8, 2016 by, inter alia, denying to repay the amount. However, the petitioner did not take any immediate legal action since the depositor wanted to provide some more time to the company to arrange funds for repayment of the deposits. Therefore, the petitioner was issued another demand notice dated November 24, 2016 to the company under section 434 of the Companies Act, 1956.
(7) It is alleged that the company and its directors have violated the provisions of section 73 of the Companies Act, 2013 and are therefore liable to be punished in accordance with the provisions of the Companies Act, 2013.
(8) It is submitted that as per rule 2(1) (c) of the Companies (Acceptance of Deposits) Rules, 2014, any amount received by the company in the form of instalments or otherwise from, a person with a promise or offer to give returns in cash or in all kind shall be considered as deposits. Further, as per section 2(31) of the Companies Act, 2013, deposit includes any receipt of money by way of deposit or loan or in any other form by a company. Therefore, from the provisions of the Companies Act, 2013 and the rules made thereunder, it is under that the amount received by the company by the depositor is in the nature of deposits.
3. The respondent has filed a counter dated November 13, 2017 by, inter alia, contending the petition is not maintainable since the petitioner neither given any deposit nor attached any deposit receipt by the company. The amount they have stated to have given to the company was only towards business investment as a business partner specifically for the establishment of long-term project namely Primary Community Healthcare centre at Murugeshpalya, Bangalore by way of partnership arrangement with the company. However the petitioner failed to prove it back active with regard to the issue raised in the company petitioner and unwarranted direction from the Tribunal.
4. Heard Shri Abhijit Atur along with Ms. Akhila M. S., learned counsel for the petitioner and Shri Peter Pushparaj, managing director of the respondent-company in person. We have carefully perused the pleadings of both the parties.
5. Shri Abhijit Atur along with Ms. Akhila M. S., learned counsel for the petitioner, while reiterate various averments made by the company petitioner as further submitted that the amount deposited the company is towards business investment as a business partner specifically for the establishment of long term project namely Primary Community Healthcare centre at Murugeshpalya, Bangalore by way of arrangement with the company.
6. Therefore, Shri Abhijit Atur along with Ms. Akhila M. S., learned counsel for petitioner while reiterate various averments made by the company, the petitioner has deposited the amount in the company with objects to get ample returns the allotment of proportional shares to the depositors in lieu of the deposited amount. He has not suppressed anything with regard to deposit which he has made between May, 2014 and July, 2015 amounting to Rs. 15,00,000 (rupees fifteen lakhs only). However the petitioner has not produced any evidence to show that the investment amount is towards deposit. Hence, learned counsel urged the Tribunal to allow the petition.
7. Shri Peter Pushparaj, managing director of the company, who appears in person today made a submission that the amount taken by the company was only towards business investment as a business partner specifically for the establishment of long-term project namely Primary Community Healthcare centre at Murugeshpalya, Bangalore by way of arrangement with the company and he made a submission that the amount was not at all towards deposit as that deposit they were supposed to follow the provisions of section 73 (4) of the Companies Act, 2013.
8. The petitioner has not given all the material facts with regard to the invoking of section 73 of the Companies Act, 2013, no company shall invite, accept or renew deposits under this Act, from the public except in a manner provided under this Chapter.
9. Admittedly, the petitioner has not filed any document to show any invitation was issued by the company from the public including the petitioner. The petitioner has not produced any material to show that in response to notification they have deposited the money primary company petition (sic).
10. Moreover, the complaint has made on July 1, 2016 to the Investor Grievance Management Cell and the Registrar of the Companies, by, inter alia, stating that he has invested Rs. 15,00,000 (fifteen lakhs only) in the financial year 2014-15 and they have verbally promised to give equity shares ; later on there was a promise of debenture and also returning the money with interest. The petitioner Mr. Peter Pushparaj, managing director of the company has addressed letter to the Registrar of the Companies reply dated August 24, 2016 by, inter alia, stating that the company being a start up company for establishing Primary Health Care Centres for Preventive and Primary Community Healthcare Services, Corporate, Schools, and Family Health Centres to address high mortality rates from NCD (Non Communicable Diseases). The petitioner Dr. Lohith Shivataje, formerly an employee of the company, has given a total amount of Rs. 15,00,000 to the company towards project advance at no point of time we have promised to issue equity shares and we hereby deny the allegations made by him in his complaint dated July 1, 2016 which are baseless. They have also stated that they have communicated to the petitioner to come for any settlement agreement. However, the petitioner is not interested to settle the issue rather than making the dispute. The another complaint dated September 14, 2016 was given by the petitioner to the Registrar of Companies. It is pertinent to note that the money so received by the company from the petitioners are "deposits" by virtue of the provisions of s
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ection 2(31) of the Companies Act, 2013 read with rule 2(1)(c) of the Companies (Acceptance of Deposit) Rules, 2014. The company, being a private limited company, ought not to have accepted deposits from the undersigned as the undersigned neither is a director nor a shareholder of the company. The acceptance of deposits from the petition undersigned is in violation of the provisions of section 73 of the Companies Act, 2013 and the company and its directors are liable to be punished under the provisions of section 76A of the Act. 11. Therefore, it is very clear that the applicant has not deposited the amount pursuant to any invitation made by the company. However, for inviting any public deposit. Therefore, the claim of the petitioner is not maintainable under section 73(4) of the Companies Act, 2013 and is misconceived. Therefore, the company petition is liable to be dismissed. 12. Hence, C. P. No. 76/BB/2017 is hereby dismissed. No order as to costs.