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TMI Blog2020 (3) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... been allowed to accept public deposits. The definition of Corporate Person in section 3(7) of IBC specifically provides that it shall not include any financial service provider . Considering the Certificate issued by the Reserve Bank of India and also documents as placed on record by the Appellant - Corporate Debtor, we have no hesitation to hold that the Corporate Debtor in the present matter on date of Application being financial service provider, the provisions of IBC could not have been invoked against the Corporate Debtor. There are no fault with the Impugned Order of Adjudicating Authority where it observed that it does not have jurisdiction to recall its Order of admission but do not agree with its other findings referred earlier and imposing of costs. However, this Tribunal has jurisdiction in Appeal to consider whether initiation of CIRP process against the Corporate Debtor is legal or not. The impugned order admitting the section 7 Application under IBC as well as further steps taken on admission of the Application and release the 'Corporate Debtor' from rigour of 'Corporate Insolvency Resolution Process', is set aside. - A.I.S. Cheema, Judicial Member K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under section 3(16) of IBC and that it is financial service provider as defined under section 3(17) of IBC which would require appreciation of evidence. After recording such and other reasons, the Adjudicating Authority declined to recall the Order and rejected the CA 101/2019 with costs of ₹ 50,000/-. 3. We have heard Counsel for both sides. The present Appeal has been filed by shareholder of the Corporate Debtor. It is claimed in the Appeal and it has been argued for the Appellant that in December, 2017, when Adjudicating Authority issued Notice to the Corporate Debtor, the Financial Creditor and Corporate Debtor both entered into compromise agreement in April, 2018 and Corporate Debtor had agreed to pay unpaid amount by equal monthly instalments and undated cheques had been issued. However, the Application under section 7 came to be admitted. The Appellant for Corporate Debtor claims that it is non-banking finance company and documents in that connection, have been filed on record and that under section 3(7) of IBC where definition of Corporate Person is given, Financial Service Provider has been excluded and thus, provisions of IBC could not have been invoked against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all under the definition of financial service as defined in section 3(16). It is argued that accepting of public deposits was not allowed to the Corporate Debtor. Section 3(7) reads as under:- '(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) of section 2 of the Limited Liability Partnership Act, 2008 (6 of 2009), or any other person incorporated with limited liability under any law for the time being in force but shall not include any financial service provider;' Section 3(16) is as follows:- '(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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany and it was found:- 19. Therefore, it is clear that the Respondent, a non-banking financial institution is carrying on business of financial institution and thereby it being financial service provider do not come within the meaning of Corporate Person/Corporate Debtor. 20. So far as the allegation that the Respondent, Non-Banking Finance Company, is taking deposits from others in violation of conditions imposed by the Reserve Bank of India, such issue cannot be decided by the Adjudicating Authority while considering an Application under section 7 or 9 of the I B Code. Only on such ground the Adjudicating Authority cannot admit or reject an application under Section 7 or 9 of the I B Code. If the terms and conditions imposed by Reserve Bank of India or there is violation of any of the provision of Reserve Bank of India, one may bring the same to the notice of Reserve Bank of India and not before the Adjudicating Authority. This Bench finds itself in agreement with the law as explained by the Division Bench of this Tribunal (to which one of us - Justice A.I.S. Cheema was also Member). The definition of Corporate Person in section 3(7) of IBC specifically provides that it shall no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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