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2018 (2) TMI 1353 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHICorporate insolvency process - eligible debt - review petition - Held that:- the instant application, which is in the nature of review, does not warrant acceptance. The non applicant- petitioner had filed a petition under Section 7 of the Code alleging that deposits made by it have remained unpaid and the total amount claimed was more than Rs, 44.50 crores. Such a transaction does not involve an activity which is imputable to an NBFC. The fact that the applicant-respondent is registered as NBFC would not be sufficient to assume that all transaction irrespective of their nature and character would be regarded as activity of a financial service provider. By no stretch of imagination, it could mean that every NBFC is covered by the expression ‘financial service provider’ a license holder as ‘NBFC also have activities other than that of ‘financial service provider’. Applicant-respondent cannot successfully claim that having accepted deposits he has become financial service provider. Code has not excluded NBFC as a class but has preferred to go by the test of financial service provider. It therefore follows that the NBFC ipso facto has not been excluded from the definition of Corporate person as defined under section 3(7) of the Code. Mr. Agarwal has rightly contended that the functional test has been devised by using the expression that a corporate person shall not include any ‘financial service provider’ and an NBFC necessarily would have various facet of other activities would not be covered by the expression ‘Financial Service Provider’. In the case of Forech India (P.) Ltd. v. Edelweiss Assets Reconstruction Co. Ltd. [2017 (11) TMI 1621 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL DELHI] has taken a view that no application under Sections 7, 9 & 10 of IBC, 2016 would be maintainable in case a liquidation order has been passed in respect of the same Corporate Debtor in winding up proceedings either by the High Court or by the Tribunal. In that regard reliance has been placed on the ineligibility clause in Section 11(d) of the IBC and the meaning of the word ‘winding up’ given in Sections 2(23) and 94A. The view of the Hon’ble Appellate Tribunal is binding on us as per the principles of stare decisis and the precedents. Therefore, the aforesaid argument would also not survive for consideration. Review application fails
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