2017 (9) TMI 128 - AT - Insolvency and Bankruptcy

No payment of unpaid operational debt by the Corporate Debtor - whether filing of a copy of the certificate from the Financial Institution , maintaining accounts of the Operational Creditor confirming that there is no payment of unpaid operational debt by the Corporate Debtor as prescribed under clause (c) of sub-section (3) of Section 9 of the I&B Code? - Held that - Admittedly, the Bank in question is not a scheduled bank, nor is a financial institution as defined under Section 45-1 of Reserve Bank of India Act, 1934 (2 of 1934). The Bank aforesaid also do not come within the meaning of Public Financial Institution as defined in clause (72) of Section 2 of Companies Act, 2013 (18 of 2013). The Central Government has also not issued any Notification specifying the Bank in question for the purpose of sub-section (14) of Section 3 r/w Section 9 of I & B Code . In the circumstances, we hold that the application preferred by the appellant was not maintainable in the absence of record of Financial Institution as defined in sub-section (14) of Section 3 of the I&B Code.

Summary

Issues:
- Challenge to order dated 25th May, 2017 passed by the Learned Adjudicating Authority
- Interpretation of clause of arbitration as an "existence of dispute"
- Requirement of a certificate from a Financial Institution under Section 9 of the Insolvency and Bankruptcy Code
- Analysis of whether the provision regarding the certificate is mandatory or directory
- Definition of "financial institution" under Section 3 of the Insolvency and Bankruptcy Code

Analysis:
The appeal was filed against an order passed by the Learned Adjudicating Authority under the Insolvency and Bankruptcy Code. The Appellate Tribunal considered the argument that the mere presence of a clause of arbitration in an agreement does not constitute an "existence of dispute" for the purpose of refusing an application under Section 9 of the Code. The Tribunal emphasized that the provision requiring a certificate from a Financial Institution is mandatory, as seen in previous judgments like "Smart Timing Steel Ltd. v. National Steel & Agro Industries Ltd." The Tribunal highlighted the importance of following the procedural requirements, including submitting specific documents as mandated by the Code.

Regarding the definition of "financial institution" under the Code, the Tribunal referred to the case of Macquarie Bank Ltd. v. Uttam Galva Metallics Ltd. where it was clarified that a foreign bank not falling under the specified categories is not considered a Financial Institution under the Code. In the absence of a certificate from a recognized Financial Institution as defined by the Code, the Tribunal concluded that the application was not maintainable. This decision underscores the significance of complying with the statutory provisions and requirements set forth in the Insolvency and Bankruptcy Code.

In conclusion, the appeal was dismissed as the appellant failed to provide the necessary certificate from a Financial Institution as required by the Code. The Tribunal found no merit in the appeal and decided not to award costs in this case. The judgment serves as a reminder of the strict adherence to the procedural and substantive requirements outlined in the Insolvency and Bankruptcy laws to ensure the proper functioning of the resolution process.