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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 ..... i Bench-III) having No. C.P. IB-464/(ND)/2017, against Jeevan Jyoti Vanijya Limited (Corporate Debtor). The Application was admitted on 15th January, 2019. The Corporate Debtor then filed Application under Rule 11 (CA No.101/C-III/ND/2019) before the Adjudicating Authority to recall the Order of admission which has been dismissed with costs and hence, the present Appeal. 2. The Financial Creditor in the Application under section 7 claimed that it had disbursed a loan of Rs. 3,00,00,000/- on 2nd May, 2017 and that there was default in repayment. The Financial Creditor served Notice dated 12th August, 2017 on the Corporate Debtor. The Corporate Debtor had appeared before the Adjudicating Authority and claimed that there is a compromise and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the CA 101/2019 with costs of Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 and 2017 - 2018 as well as certified copy of the list of NBFC issued by RBI which reflects the name of the Corporate Debtor. The Appellant has filed copies of statutory certificates for the years 2015 - 2016 to 2017 - 2018 and also certified copies of Annual Returns of 2016 - 2017 and 2017 - 2018. Copy of the letter of RBI dated 2nd January, 2003 as well as the Certificate of Registration as NBFC dated 1st January, 2003 is also placed on record. The learned Counsel for the Appellant at the time of arguments also tendered the conditions attached to the above certificate B.14.00908. 6. At the time of arguments, Counsel for the Appellant strenuously argued to show that the Appellant - Corporate Debtor is an NBFC and also working as NBFC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elling, or subscribing to, a financial product; (ii) availing a financial service; or (iii) exercising any right associated with a financial product or financial service; (f) establishing or operating an investment scheme; (g) maintaining or transferring records of ownership of a financial product; (h) underwriting the issuance or subscription of a financial product; or (i) selling, providing, or issuing stored value or payment instruments or providing payment services;' Section 3(17) is as follows:- '(17) "financial service provider" means a person engaged in the business of providing financial services in terms of authorisation issued or registration granted by a financial sector regulator;' 7. Having heard th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eserve Bank of India Act, 1934 which relates to "Provisions Relating to Non-Banking Institutions Receiving Deposits and Financial Institutions"; Section 45-I(a) and (c) as well as (f) to consider "financial institutions" and "non-banking financial company" 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 Adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that it is financial service provider and supports the claim with evidence by Certificate by Reserve Bank of India, it is appropriate for the Adjudicating Authority to lay off its hands from such Corporate Debtor considering the definition of "Corporate Person", under section 3(7). 8. We do not find 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. As we find that the Corporate Debtor in the present matter is NBFC and being fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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