TMI Blog2020 (2) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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. Application do not deserves to be admitted - application dismissed. - CA NO./01/C-III/ND/2019 And CP IB NO. 464/ND/2017 - - - Dated:- 14-6-2019 - R. Varadharajan, Judicial Member And Deepa Krishan, Technical Member Dinkar Singh, Sameer Srivastava, Chetan Tripathi and Kamal Ahuja, Adv. for the Applicant. Ashish Aggarwal, Gurkamal, Hora Arora, Amit Bhatnagar, Ajay Kumar Arora, Gurcharan Singh, Amit Choudhary, Subodh Kumar Pandey and Arjun Sehgal, Advs. for the Respondent. ORDER 1. This application has been filed by the Corporate Debtor(CD) under Rule 11 of National Company Law Tribunal Rules, 2016 in relation to proceedings under Insolvency and Bankruptcy Code, 2016 (IBC) seeking there under to recall the order dated 15.01.2019 passed by this Bench of the Tribunal whereby this Tribunal had initiated the Corporate Insolvency Resolution Process (CIRP) as against the CD. The primary ground for the recall it is evident from the averments contained in the application as well as the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s pointed out that the same is subject to certain terms and conditions as contained in the reverse of the certificate which in any case has not been furnished to demonstrate before this Tribunal that it is a NBFC complying, with all the terms and conditions as prescribed by RBI. It is also further contended that in terms of section 227 of the IBC, 2016 the Central Government has not chosen to issue any Notification to recognize or categorize as to which of the Financial Service Provider shall be included within the definition of a 'Corporate Person'. In the circumstances, the applicant cannot take shelter under the relevant provisions of IBC,2016. It is also stated for record that all the 24 cheques amounting to ₹ 2,40,00,000/- which have been issued by CD to FC drawn on Central Bank of India, Ahmedabad Stock Exchange Branch, Ahmedabad presented on 31.7.2018 have been returned unpaid with the endorsement payments stopped by the drawer and taking into consideration all the above, it is stated that this application should be dismissed with exemplary cost. 3. A rejoinder has been filed by a shareholder of the CD wherein it is stated that in order to meet the ends of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Bench in HDFC Ltd. v. RHC Holding Private Limited passed in CP(IB)378(PB)/2018, the original petitions as filed by the FC it is submitted is required to.be dismissed because of the exclusion clause of a FSP amenable to the jurisdiction under IBC, 2016. 4. An additional rejoinder has also been filed wherein certain additional documents which according to the applicant had been inadvertently failed to be attached and being vital documents to support the application, are being filed In order to establish that the CD is indeed a NBFC regulated by RBI and is covered under the definition of section 3(17) of IBC, 2016. In the additional rejoinder to buttress the plea that it is indeed a NBFC regulated by RBI, the Statutory Auditor Certificate in relation to all NBFCs for reporting that all returns have been filed within the prescribed time frame is sought to be relied. In effect, the CD, it is pointed out, does not fall within the purview of IBC,2016 as it has been excluded from the definition of 'Corporate Person' as defined under sub-section 3(7) of IBC,2016. 5. Ld. Counsel for the parties were heard in detail and as already pointed out since this Tribunal is not vested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tify presently by the applicant in this application. 8. In the circumstances, as rightly pointed out by Ld. Counsel for the petitioner/FC and the non-applicant herein that considering the facts and circumstances of the case as well as averments made by the parties in their pleadings in the main CP, this Tribunal has passed order on merits of which there could be no second view as passed by this Tribunal vide order dated 15.01.2019.However, after initiation of CIRP in relation to the CD and the appointment of Interim Resolution Profession (IRP) vide order dated 15.01.2019, belatedly the applicant is seeking to bring to the notice of this Tribunal that it will fall within exclusion category as provided under section 3(7) of IBC,2016 and that it is indeed a Financial Service Provider. The contention that it is a Financial Service Provider, as can be seen from the reply of the OC/non-applicant herein, and also in view of the submissions made by Ld, Counsel appearing on its behalf is vehemently contested and it is sought to be projected by Ld. Counsel for the OC/non-applicant that despite registration with RBI as a NBFC that it is not necessary that it should be considered as Financi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of clauses (a) to (i) of the said sub-section (16) of Section 3, the CD goes out of the definition of the 'Financial Service Provider' as defined under sub-section (17) of section 3 of IBC,2016 and thereby treated as the Corporate Person amenable to the provisions of IBC,2016 in relation to the initiation of CIRP as against it. However, as a counter to the above arguments advanced as made by Ld. Counsel for the non-applicant, Ld. Counsel for the applicant insists on the definition of 'financial products' as given in sub-section (15) of section 3 of IBC,2016 and points out that credit arrangement including loans advanced by banks and financial institutions or any instrument as may be provided in addition to what has been stated, is required to be considered as clause(b) of sub-section (16) of section 3 provides safeguarding and administering assets consisting of financial products, belonging to another person, or agreeing to do so shall be considered as the financial service. In this connection, it is also pointed out that clause (d) of sub-section (16) of section 3 of IBC,2016 also comes to the aid of the applicant as the applicant/CD is offering, managing or agre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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