Company Appeal (AT)(Insolvency) No.684 of 2020

Page | 1

NATIONAL COMPANY LAW APPELLATE TRIBUNAL

COMPANY APPEAL (AT)(Insolvency) No.684 of 2020

(Under Section 61 of the Insolvency and Bankruptcy Code, 2016 read with

Section 421 of the Companies Act, 2013)

(Arising out of Order dated 12.3.2020 passed by the National Company Law

Tribunal, New Delhi Bench in Company Petition No. (IB)2978(ND)/2019)

IN THE MATTER OF :

Mr.MOHANLAL DHAKAD

R O 15, Vill : Sikhedi,Po Badwan

….. Appellant

The & Dist, Mandsaur,

Madhya Pradesh 458 667

Versus

BNG GLOBAL INDIA LIMITED,

Having its Registered Office at:

GD ITL A-09, Northex Tower,

5^th Floor, 504, Netaji Subhash Place,

Pitambura, New Delhi 110034.

…Respondent

Present:

For Appellant:

Ms. Ranjana Roy Gawai &

Mr.Avinash Bhati, Advocates

For Respondent:

None

J U D G E M E N T

Venugopal M.J

Preface

The ‘Appellant’ has filed the present appeal being

dissatisfied with the order dated 12.3.2020 passed by the ‘Adjudicating

Authority’ (National Company Law Tribunal), New Delhi Bench-V in

(IB)2978(ND)/2019.

Company Appeal (AT)(Insolvency) No.684 of 2020

Page | 2

2.

The ‘Adjudicating Authority’ (National Company Law

Tribunal), New Delhi Bench-V, while passing the ‘Impugned Order on

12.3.2020 in (IB)2978/ND/2019 filed by the ‘Appellant’/’Financial

Creditor’ and others (under Section 7 of the Insolvency & Bankruptcy

Code) read with Rule 4 of Insolvency & Bankruptcy (Application to the

‘Adjudicating Authority’ )Rules 2016, at Paragraphs 6 to 9, among other

things had observed the following:

….” If we shall read the provisions contained under

Section 73, 74 and 76 of the Companies Act along

with (Acceptance of Deposits) Rule, 2014, then it can

be said that all these provisions have come into force

with effect from 01^st April, 2014 and in view of the

aforesaid provisions after commencement of this Act,

no company can in view, accept or renew deposit in

this Act from the public except in the manner

provided in this Chapter and a special provision is

made regarding the repayment of the deposited

amount which was deposited prior to the enforcement

of this Section and as per Section 74(1)(b), the

company is liable to repay the amount within 3 years

from such commencement on or before expiry of the

period from which the deposit is accepted, whichever

is earlier and if the company fails to repay the amount

then there is a penal provision U/S 74(3) of the

Companies Act, 2013. Here, in the case as we have

Company Appeal (AT)(Insolvency) No.684 of 2020

Page | 3

already

held

that

the

‘Financial

Creditors’

everywhere mentioned the word ‘deposit’, therefore,

the amount which he has deposited with the

Corporate Debtor does not come within the purview

of the definition of Financial Debt rather the Financial

Creditors, admittedly, deposited the amount with the

Corporate Debtor and in lieu of that he was getting

interest from the Corporate Debtor, therefore, he can

claim the refund under Chapter V of the Companies

Act, read with Companies Act, read with Company

(Acceptance of Deposits) Rule, 2014.

So far, the initiation of proceedings under Section 7

of the Code is concerned, in our view, is not liable to

be accepted. At this juncture, we would also like to

refer the arguments of the applicants that there is a

default in payment of debt, therefore, Section 7

application is maintainable. At this juncture, we

would like to refer the definition of default as defined

in Section 3(12) of the Code:

Section 3(12)

(12) “default” means non-payment of debt when

whole or any part or instalment of the amount of

debt has become due and payable and is not

1[paid] by the debtor or the corporate debtor, as

the case may be”

Company Appeal (AT)(Insolvency) No.684 of 2020

Page | 4

8.

Mere plain reading of the provisions show

that def