9911796707
TMI Blog2020 (2) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... ny, namely, the CD is Non-Banking Financial Company (NBFC) registered on 1.1.2003 bearing registration No. B. 14.00908 evident from the registration certificate issued by the Reserve Bank of India (RBI). In relation to other grounds which have been stated, this Tribunal is of the view that the same cannot be gone into as it will be venturing into the merits of the case as the matter itself was contested by the CD prior to the initiation of the CIRP by this Tribunal vide order dated 15.01.2019. However, if the applicant is able to convince this Tribunal that it will not fall within the purview of the IBC, then no CIRP can be initiated against the CD as this Tribunal will lack the jurisdiction to entertain the petition. In the circumstances, the applicant was given an opportunity to convince this Tribunal in relation to the issue as raised in the application regarding its amenability as a CD under the provisions of IBC,2016. An opportunity was also provided to the respondent, namely, the Financial Creditors (FC) who moved the main CP and at whose instance the CIRP was initiated. 2. In relation to the application in the reply it is pointed out that this Tribunal has no jurisdiction t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he process of law, this Tribunal can exercise the power under Rule 11 of NCLT Rules, 2016 by recalling the order dated 15.01.2019 passed by this Tribunal as the FC being a Financial Service Provider this Tribunal could not have initiated CIRP taking into consideration the relevant provisions of IBC, 2016. The very fact that RBI has chosen to issue a certification of registration to the CD to carry on the business of NBFC which ex-facie proves that the CD renders 'financial service', as defined under Section 3(16) of IBC,2016 read with Section 3(17) of IBC,2016 which defines 'Financial Service Provider' as well as Section 3(18) wherein Financial Service Regulator has been defined, which also includes RBI. The certificate as issued by RBI it is submitted should be taken due note of. In this Connection, it is also pointed out in the rejoinder that the copy of Memorandum of Association of the CD which has been annexed along with the rejoinder clearly demonstrates that the CD is in the business of providing financial services and is engaged in providing financial services which is also evident from the copy of the balance sheet along with the audited report filed with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by this Tribunal by way of review or recall of the order, however, it is also mindful that the CIRP process cannot be initiated against the 'Corporate Person' who has been excluded from the purview of the definition of Corporate Person and such exercise power will be in excess of its jurisdiction. On the other hand, this Tribunal is also required to see as to whether in the first place to initiate CIRP as against the CD it has to primarily take recourse to the pleadings and as to whether the parties had brought to the notice of this Tribunal the relevant facts to establish prior to the admission stage that IBC,2016 cannot be applied to the CD. The onus in this connection initially vests with the petitioner who approached this Tribunal for initiation of CIRP that in fact the CD can be considered as a 'Corporate Person' as defined under sub-section 3(7) for which the definition of the 'Corporate Person' as defined under sub-section 3(7) is material and which is as follows: 3(7) "corporate person" means a company as defined in clause (20) of section 2 of the Companies Act, 2013, a limited liability partnership, as defined in clause (n) of sub-section (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services, as contemplated under the provisions of sub-sections 3(16) and 3(17) of IBC,2016. In the circumstances, it becomes imperative for this Tribunal to consider the definition of 'financial service' and 'Financial Service Provider' as defined under the provisions of IBC,2016 and for ready reference, both, are extracted as below: 3(16) "financial service" includes any of the following services, namely:- (a) accepting of deposits; (b) safeguarding and administering assets consisting of financial products, belonging to another person, or agreeing to do so; (c) effecting contracts of insurance; (d) offering, managing or agreeing to manage assets consisting of financial products belonging to another person; (e) rendering or agreeing, for consideration, to render advice on or soliciting for the purposes of- (i) buying, selling, or subscribing to, a financial product; (ii) availing a financial service; or (iii) exercising any right associated with a financial product or financial service; (f) establishing or operating an investment scheme; (g) maintaining or transferring records of ownership of a financial product; (h) underwriting the issuance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er person. In any case, it is also highlighted that the Financial Sector Regulator - RBI has chosen to grant the certification of registration to the applicant/CD as a NBFC which necessarily in itself connotes that it is carrying on the business of Financial Service Provider. 10. From the above discussion it is evident that the CD is required to establish that it is rendering financial service as defined under Section 3(16) of IBC,2016 and that it is a 'Financial Service Provider' as defined under section 3(17) of IBC,2016 all of which requires appreciation of evidence, which this Tribunal is afraid cannot be ventured into after a final order has been passed after contest with the available materials on hand, including the pleadings of the respective parties. Inherent powers as provided under Rule 11 of NCLT Rules, 2016 cannot also be indiscriminately exercised by this Tribunal with a view to subvert the appellate provisions as provided under IBC,2016 in case if the parties are aggrieved by final order passed by this Tribunal more so when specific time limits are provided in IBC,2016 in filing appeals before the Appellate Tribunal. The decisions relied on by. 11. In relat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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