9911796707
TMI Blog2019 (12) TMI 1406X X X X Extracts X X X X X X X X Extracts X X X X ..... inst Reliance Commercial Finance Limited (hereinafter called "Corporate Debtor") alleging that Corporate Debtor committed default in making payment of Rs. 15,94,353/-, by invoking the provisions of Section 8 and 9 of the Insolvency & Bankruptcy Code (hereinafter called "Code") read with Rule 5 and 6 of Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016. 2. The Petitioner is engaged in the business of designing, engineering, fabrication, assembly and erection of custom Façade systems, providing complete design-build services in building construction. Pursuant to the negotiations between the parties the Corporate Debtor issued a sanction letter whereby a term loan of Rs. 2 crores were granted to the Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es in the proforma of machines, then they will have to first pay the EMI from 15.06.2017 as the case of Petitioner has already been booked in the system. The Petitioner addressed an email to the Corporate Debtor on 03.06.2017 and requested to hold easiest mandate till disbursement of full value of Rs. 2 crores. The Petitioner further sought confirmation from the Corporate Debtor that they would not be any issue with the changed proforma as the Petitioner would required to make 25% of advance payment to suppliers on the basis of assurance by the Corporate Debtor. 4. Thereafter as per the oral assurance given by the Corporate Debtor the changed proforma should be sanctioned, the Petitioner issued a mandate to OBC Bank towards payment of EMI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and services, but a transaction related to term loan by the Corporate Debtor. The Corporate Debtor further reiterated that the Petitioner without complaints to the terms and conditions requested the Corporate Debtor to amend the sanction letter accepting the change of supplier and differential amount of margin money. The Petitioner in contravention of sanction letter request the Corporate Debtor not to process the EMI's due to commence from June 2017, refund of security cheques towards payment of EMI's and refund of original agreement and return of security cheques towards repayment of loan. The Corporate Debtor on 21.07.2017 had categorically informed the Petitioner that although a time period of 3 months was granted in favor of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the time being in force but shall not include any financial service provider; Further Section 3(8) defined "Corporate Debtor" means a corporate person who owes a debt to any person; From the above said provisions it is clear that a corporate person does not include any financial service provider and therefore cannot be a Corporate Debtor in terms of the IBC. The Corporate Debtor being a non-banking financial company is excluded from the definition of corporate person and cannot be further be roped in as a Corporate Debtor in terms of IBC. The Code further defines Financial Service provider at Section 3(17). Section 3(17) is extracted below: "financial service provider" means a person engaged in the business of providing financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the purview of IBC as it is not a corporate person/ Corporate Debtor. 11. The counsel for the Petitioner further filed written submissions and claim that these judgements does not applicable to her case and that the Corporate Debtor is asset financial company i.e. in the business of financing assets having the main object to do business of non-banking financial company and in view of the certificate granted by RBI which prohibits the corporate Debtor to accepts the deposits, this present corporate debtor needs to be distinguished from the definition of corporate person and that the activities carried out by them as NBFC are to be included under clause a of section 3(17). The Petitioner relied on judgement of the supreme Court in South Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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