TMI Blog2017 (9) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Institution' as defined in clause (72) of Section 2 of Companies Act, 2013 (18 of 2013). The Central Government has also not issued any Notification specifying the Bank in question for the purpose of sub-section (14) of Section 3 r/w Section 9 of 'I & B Code'. In the circumstances, we hold that the application preferred by the appellant was not maintainable in the absence of record of 'Financial Institution' as defined in sub-section (14) of Section 3 of the I&B Code. - Company Appeal (At) (Insolvency) NO. 97 of 2017 - - - Dated:- 31-7-2017 - MR. S.J. MUKHOPADHAYA AND MR. BALVINDER SINGH, JJ. For The Appellant : Vivek Sibal, Ms. Pooja, M. Saigal and Ms. Khyati Sharma, Advs. For The Respondent : Ramesh Singh and A.T. Patr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode. From the record, we find that the appellant has enclosed one letter relating to 'confirmation of receipt of payment' from foreign institution known as 'Sparkasse Siegen'. 5. The question as to whether filing of a copy of the certificate from the 'Financial Institution', maintaining accounts of the Operational Creditor confirming that there is no payment of unpaid operational debt by the Corporate Debtor as prescribed under clause (c) of sub-section (3) of Section 9 of the I B Code is mandatory or directory, was considered by this Appellate Tribunal in Smart Timing Steel Ltd. v. National Steel Agro Industries Ltd. [Company Appeal (AT) (Insolvency) No. 28 of 2017] . The Appellate Tribunal by its judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein. As per sub-rule (2) of Rule 6 it is mandatory again to dispatch a copy of application filed with the adjudicating authority, by registered post or speed post to the registered office of the Corporate Debtor. 13. The provisions of sub-section (3) mandates the operational creditor to furnish copy of invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor, an affidavit to the effect that, there is no notice given by the corporate debtor relating to dispute of unpaid operational debt, a copy of the certificate from the 'Financial Institutions' maintaining accounts of the operational creditor confirming that, there is no payment of an unpaid operational debt by the corporate de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceivable within the contemplation of the statute. 16. For determination of the issue whether a provision is mandatory or not, it will be desirable to refer to decision of Hon'ble Supreme Court in State of Mysore v. V.K. Kangan (1976) 2 SCC 895. In the said case, the Hon'ble Supreme Court specifically held: 10. In determining the question whether a provision is mandatory or directory, one must look into the subject-matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. No doubt, all laws are mandatory in the sense they impose the duty to obey on those who come within its purview. But it does not follow that every departure from it sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in clause (72) of section 2 of the Companies Act, 2013 (18 of 2013); and (d) such other institution as the Central Government may by notification specify as a 'financial institution. 7. Admittedly, the Bank in question is not a scheduled bank, nor is a 'financial institution' as defined under Section 45-1 of Reserve Bank of India Act, 1934 (2 of 1934). The Bank aforesaid also do not come within the meaning of 'Public Financial Institution' as defined in clause (72) of Section 2 of Companies Act, 2013 (18 of 2013). The Central Government has also not issued any Notification specifying the Bank in question for the purpose of sub-section (14) of Section 3 r/w Section 9 of 'I B Code'. 8. In the ci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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