At, National Company Law Tribunal Ahmedabad
By, THE HONOURABLE MR. BIKKI RAVEENDRA BABU
By, JUDICIAL MEMBER & THE HONOURABLE MS. MANORAMA KUMARI
By, JUDICIAL MEMBER
For the Appearing Parties: ------------------
Bikki Raveendra Babu, Member
1. The petitioners in this batch petitions have deposited their hard earned money with Plethico Pharmaceuticals Ltd. in fixed deposits prior to 01.04.2014. Petitioners came forward before this Tribunal with a request for direction to Plethico Pharmaceuticals Ltd. to refund their fixed deposit amounts with interest as agreed under Section 73 (4) of the Companies Act, 2013.
2. It is the contention of the petitioners in all these petitions that inspite of the maturity period is over, fixed deposit amounts have not been returned to them by the company. Further, it is the case of the petitioners that inspite of the orders of Hon'ble Company Law Board, Mumbai and the dismissal of petition filed by the company for extension of time by National Company Law Tribunal, Ahmedabad bench, the company did not choose to make any payments. Learned counsel appearing for the petitioners contended that inspite of service of notice, none choose to appear for the company. Petitioners brought to the notice of this Tribunal the following facts that are germane for disposal of this batch petitions:
3. Citibank N.A. London Branch, a US National banking corporation incorporated under the laws of the New York and acting through its London Branch having its principal office in London through its authorised signatory filed winding up petition vide Company Petition No. 35 of 2013 before Hon'ble High Court of Madhya Pradesh, Indore Bench against Plethico Pharmaceuticals Ltd. Hon'ble High Court of Madhya Pradesh, Indore Bench admitted the said winding up petition on 01.10.2014. Hon'ble High Court of Madhya Pradesh, Indore Bench in the said winding up petition and appointed provisional liquidator vide order dated 07.04.2015.
4. Plethico Pharmaceuticals Ltd. approached State Government of Madhya Pradesh seeking relief under section 3 of the Madhya Pradesh Sahayta Upkarm Adhiniyam 1978 and the State Government of Madhya Pradesh accordingly granted relief to the company vide notification dated 16.06.2015. Basing on the said notification, the company filed application IA No. 4759 of 2015 under section 3 of the aforesaid Act for staying the said winding up proceedings. Hon'ble High Court of Madhya Pradesh vide order dated 15.05.2015 stayed the winding up proceedings till 16.06.2016. While granting stay Hon'ble High Court of Madhya Pradesh observed that the order will not affect the order already passed on 07.04.2015. r
5. The company again approached State Government and sought further extension under the aforesaid Relief Act. State Government was pleased to grant relief vide notification 19.09.2016 for one year subject to certain terms and conditions mentioned in the notification dated 19.09.2016. Petitioner company instead of complying with the conditions challenged the notification before Hon'ble High Court of Madhya Pradesh at Jabalpur vide Writ Petition No. 21400 of 2016. In the said writ petition No. 21400 of 2016, Hon'ble High Court of Madhya Pradesh at Jabalpur vide order dated 06.01.2017 directed that no coercive action shall be taken against the company pursuant to the notification dated 19.09.2016. Said petition was listed before the Hon'ble High Court of Madhya Pradesh at Jabalpur on 08.11.2017 and the same was taken up for hearing on 27.11.2017.
6. Winding up petition No. 35 of 2013 is pending before Hon'ble High Court of Madhya Pradesh, Indore Bench.
7. The company as well as depositors approached Hon'ble Company Law Board, Mumbai Bench in the year 2014-15. Hon'ble Company Law Board, Mumbai vide order dated 11.09.2014 directed the Company to repay the amount to deposit holders but the company did not honour the order of Hon'ble Company Law Board, Mumbai Bench.
8. Plethico Pharmaceuticals Ltd. filed CP No. 4 of 2016 under Section 74 (2) of the Companies Act, 2013 seeking extension of time for repayment of deposit holders. Said petition was disposed by NCLT, Ahmedabad bench on 02.01.2017 dismissing the same. This Tribunal refused to extend time to the company to make payment to the deposit holders.
9. From the aforesaid material placed on record it is more than clear that the petitioners are entitled for their deposit amounts with interest as per the agreed rates.
10. Winding up petition No. 35 of 2013 is pending before Hon'ble High Court of Madhya Pradesh, Indore Bench wherein provisional liquidator has already been appointed. It appears from the material placed before this Tribunal that, at present there is no stay on the winding up proceedings.
11. Material on record also show that Writ Petition No. 21400 also is pending before Hon'ble High Court of Madhya Pradesh, Indore Bench wherein direction was given not to take any coercive steps against the company and it appears that the said order is in force and the writ petition is pending.
12. Winding up petition is filed under section 73 (4) of the Companies Act, 2013 for direction to the company for repayment to the deposit holders.
13. Section 446 of the Companies Act, 1956 says that no legal proceedings shall be commenced after winding up order has been made or Official Liquidator is appointed as provisional liquidator, except by leave of the Court. In the case on hand, winding up petition No. 35 of 2013 filed under the provisions of the Companies Act, 1956 is pending before the Hon'ble High Court of Madhya Pradesh by the date of filing of this petition under section 73 (4) of the Companies Act, 2013.
14. It is a fact that, petitioners did not obtain leave of court at the time of filing this petition or during the pendency of this proceedings. In view of the pendency of winding up petition No. 35 of 2013 and in view of Section 446 (1) of the Companies Act, 1956, proceedings filed by the deposit holders cannot be proceeded with at the instance of deposit holders against Plethico Pharmaceuticals Ltd.
15. Moreover, there is an order by the Hon'ble High Court of Madhya Pradesh in
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writ petition No. 21400 of 2016 that no coercive action shall be taken against Plethico Pharmaceuticals Ltd. 16. In fact, the petitioners are entitled for their deposit amount with unpaid interest at the agreed rates and the company has to make payment of such amount on par along with other creditors and other liabilities. 17. In view of the appointment of Liquidator in winding up petition No. 35 of 2013 and pendency writ petition No. 21400 of 2016, petitioners are at liberty to approach the Hon'ble High Court of Madhya Pradesh in the winding up petition No. 35 of 2013 for refund of their deposit amount. These petitions are disposed of accordingly.