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TMI Blog2019 (12) TMI 1406X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sbursed the loan amount to the machinery supplier. It was further stipulated in the sanction letter before the disbursement of loan amount, the Petitioner would create a charge on the equipment in the favor of Corporate Debtor. 3. The Petitioner retuned duly signed and stamp copies of sanction letter along with undated cheques towards security as fulfilment of precondition to sanction credit facilities to purchase 5 machineries. The Petitioner also paid an amount ₹ 2,30,000/- towards the loan processing fees of Corporate Debtor. The Corporate Debtor on 27.03.2017 vide an E-mail confirmed a sanction of ₹ 2 crores to the Petitioner. On 30.03.2017 the Corporate Debtor requested the Petitioner to issue security cheques. On 20.05. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor. Despite the fact that the Petitioner complied with the terms and conditions, the Corporate Debtor failed to disburse the sanctioned amount. On 21.07.2017, the Petitioner requested the Corporate Debtor to cancel the loan facility and return the money paid along with the processing fee by the Petitioner. The Corporate Debtor further declined to endeavor with the credit facility and confirmed that they would refund the amount paid by the Petitioner only after reducing the EMI and processing fee. The Corporate Debtor further confirm that they would process the loan for cancellation as requested by the Petitioner. 5. The Petitioner called upon the Corporate Debtor to return the amount of ₹ 13,30,000/- paid towards EMI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, accepted by Corporate Debtor towards processing and disbursing of loan cannot be refunded. The charge created on ROC and MSCI cannot be modified or canceled. On 02.05.2018, the Corporate Debtor cancelled the loan and has to obligations to disburse the loan to the Petitioner. 7. Further the Counsel for the Corporate Debtor also relied on the certificate of Registration issued by RBI declaring the Corporate Debtor as non-banking financing Company (NBFC) without accepting public deposits and claimed that a non-banking financing company is out of the purview of IBC. 8. The Counsel for the Corporate Debtor relied on judgements of NCLAT in Randhiraj Thakur v/s. M/s. Jindal Saxena Financial Services and other on 08.01.2018 and Housing D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead with financial service provider, it is clear that it is not necessary that the financial service provider must accept deposit. This includes all the activities as defined under Section 3(16) as defined under the Code such as safeguarding and administering assets consisting of financial products belonging to another person, or agreeing to do so; effecting contracts of insurance; offering, managing or agreeing to manage assets consisting of financial products belonging to another person; rendering or agreeing, for consideration, to render advice on or soliciting for the purposes of buying, selling or subscribing to, a financial product; availing a financial service, etc., they also come within the definition of financial service provider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it seems to us that the word 'includes' has been used here in the sense of 'means' this is the only construction that the word of extension, but limitation; it is exhaustive of the meaning which must be given to potteries industry for the purpose of entry 22. The use of word 'includes' in the restrictive sense is not unknown. 12. But, in view of the judgements of NCLAT Randhiraj Thakur v/s. M/s. Jindal Saxena Financial Services and other on 08.01.2018 and Housing Development Finance Corporation Ltd. v/s. RHC Holding Pvt. Ltd., and the ratio laid down in the above judgements that the Respondent being a non-banking financial company carrying business of financial institution and thereby it being financial service p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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