9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (12) TMI 1406 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - financial service provider - existence of debt and dispute or not - HELD THAT - The definition of financial services as defined under section 3(16) of IBC is not limited to 9 activities as shown at clause (a) to (i) of section 3(16). The aforesaid clauses (a) to (i) are inclusive which means there are other services which come within meaning of financial service and in the instant case the certificate of registration issued by the RBI shows that the Corporate Debtor is non-banking financial company prohibited from taking public deposits. Therefore, it is clear that the Respondent being a non-banking financial company and being a financial service provider does not come in the purview of IBC as it is not a corporate person/ Corporate Debtor. In view of the judgements of RANDHIRAJ THAKUR DIRECTOR, MAYFAIR CAPITAL PRIVATE LIMITED VERSUS M/S. JINDAL SAXENA FINANCIAL SERVICES PRIVATE LIMITED AND MAYFAIR CAPITAL PRIVATE LIMITED 2018 (10) TMI 913 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI the Respondent being a non-banking financial company carrying business of financial institution and thereby it being financial service provider cannot be included within the purview of corporate person/ corporate debtor and the IBC. Petition dismissed.
Issues:
1. Allegation of default in payment by Corporate Debtor 2. Disbursement of loan amount and subsequent actions by Corporate Debtor 3. Petitioner's request for cancellation of loan facility and refund 4. Corporate Debtor's objection to maintainability under Insolvency and Bankruptcy Code 5. Interpretation of the definition of Corporate Person and Corporate Debtor 6. Applicability of the definition of Financial Service Provider Analysis: 1. The Company Petition was filed by the Petitioner seeking to initiate the Corporate Insolvency Resolution Process against the Corporate Debtor for defaulting on a payment of a specific amount. The Petitioner engaged in the business of Façade systems and had a loan agreement with the Corporate Debtor for machinery equipment. 2. Despite fulfilling the terms of the loan agreement, the Corporate Debtor failed to disburse the sanctioned amount, leading to a request for cancellation of the loan facility and refund by the Petitioner. The Corporate Debtor disputed the claims and asserted that the loan was canceled with no obligation to disburse the amount. 3. The Corporate Debtor objected to the maintainability of the petition under the Insolvency and Bankruptcy Code, arguing that the transaction did not fall under goods and services but was related to a term loan. They contended that as a non-banking financial company, they were excluded from the definition of Corporate Debtor under the Code. 4. The Counsel for the Corporate Debtor cited judgments and definitions from the Code to support their stance that as a financial service provider, the Corporate Debtor did not fall within the purview of a Corporate Person or Corporate Debtor as defined in the IBC. 5. The Petitioner, however, argued that the Corporate Debtor's activities as a non-banking financial company should be considered under the definition of a financial service provider. They relied on a Supreme Court judgment to distinguish the Corporate Debtor's status and objected to the applicability of previous judgments cited by the Corporate Debtor. 6. Ultimately, the Tribunal dismissed the Petition based on the interpretation of the definitions and precedents, concluding that the Corporate Debtor, being a non-banking financial company and a financial service provider, did not meet the criteria to be considered a Corporate Debtor under the Insolvency and Bankruptcy Code.
|
