TMI Blog2018 (2) TMI 1353X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 usi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the National Company Law Tribunal Rules, 2016 with a prayer to recall order elated 27.06.2017 passed by this Tribunal exercising the power of Adjudicating Authority in C.P. No. (IB)-84(PB)/2017. It is appropriate to mention that on 27.06.2017 the petition filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code ) by the non applicant-petitioner namely M/s. Jindal Saxena financial Services Private Limited was admitted and insolvency professional was appointed. The present application has been filed on various grounds which are summarized as under:- 1. The petition before this Tribunal was not maintainable as respondent is not a corporate person in terms of the provisions of the Code. According to the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of is as under: a. Company Petition bearing No. Co. Pet. 114 of 2016 titled BRR Securities Pvt. Ltd. v. May Fair Capital Ltd. ; b. Company Petition bearing No. Co. Pet. 249 of 2016 titled Orcus Capital Advisors Pvt. Ltd. v. May Fair Capital Ltd ; c. Company Petition bearing No. Co. Pet. 274 of 2016 titled Aten Capital Advisors Pvt. Ltd. v. May Fair Capital Ltd. ; 5. The petition is even otherwise liable to be dismissed since the amounts under claim is disputed and unliquidated and that the petitioner has approached this Tribunal with unclean hands as no copy of the petition was served nor any legal notice was sent to the respondent. 2. The applicant has further argued that this Tribunal has inherent powers to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provider . According to the learned counsel the transaction in question cannot be regarded as a financial service nor the petitioner could be regarded as financial service provider because inter corporate deposit to the tune of ₹ 44.50 crore was provided by the financial creditor and an agreement dated 25.04.2014 was executed and the amount was to be paid back after two years i.e. 25.04.2016 which was not paid alongwith interest. 2. An NBFC can transact business other than providing financial services such as buying goods, taking properties on lease, availing professional services of Advocates, Chartered Accountants, Company Secretary etc, 3. There is no exclusion of NBFC as a class under any provisions of the Code. The Reserve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volve 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. The nature and character of transaction is crucial for bringing in the four corners of the activities relating to financial service provider. The aforesaid principle emerges from a bare perusal of Section 3 (16) (17) of the Code. 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 . In any case the applicant-respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se official liquidator has been appointed. Once it is found that no official liquidator is appointed then there is no bar to admit a petition by the Adjudicating Authority-NCLT as per the provisions of Section 11(d) of the Code. The Hon ble Appellate Tribunal in the case of Unigreen Global (P.) Ltd. v. Punjab National Bank [Co. Appeal (AT) (Insolvency) No. 81 of 2017, dated 01-12-2017] as well as in the case of Forech India (P.) Ltd. v. Edelweiss Assets Reconstruction Co. Ltd. [Co. Appeal (AT) (Insolvency) No. 202 of 2017, dated 23-11-2017] 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 proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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