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TMI Blog2022 (2) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... provider is excluded from the definition of Corporate Person - Whereas, section 3(17) of the code defines Financial Service Provider means a person engaged in the business of providing financial services in terms of authorization issued or registration granted by a financial sector regulator. In the present case in hand the corporate debtor is a person engaged in the business of providing financial services in terms of the registration granted to it by the Reserve Bank of India, therefore it is clear that the Respondent do not come within the meaning of the Corporate Person/Corporate Debtor - this Tribunal hold that the present application under section 9 of IBC, 2016 is not maintainable. Application dismissed. - IB-788/(ND)/2020 - - - Dated:- 15-2-2022 - P.S.N. Prasad, Member (J) And Rahul Bhatnagar, Member (T) For the Appellant : Ritesh Singh, Advocate For the Respondents : Alok Kumar, Nikhil Malhotra, Manan Gambhir and Garima Soni, Advocates ORDER P.S.N. Prasad, Member (J) 1. This is an application filed by the Operational Creditor, 'Mrs. Parveen Chawla, seeking to initiate Corporate Insolvency Resolution Process ( CIRP ) under Section 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is a Non-Banking Financial Company primarily dealing in vehicle finance and loan against property registered with the Reserve Bank of India and is offering financial services provided as per section 3(17) of IBC. The Corporate Debtor submitted that the CIRP cannot be initiated against the Corporate Debtor as it does not fall within the definition of Corporate Person. b. The Corporate Debtor submitted that the alleged claim of the Operational Creditor is ₹ 16,44,231/- (Rupees Sixteen Lacs Forty-Four Thousand two hundred and thirty-one) under Section 9 of Insolvency and Bankruptcy Code, 2016 (TBC) is contrary to the amount claimed in Form of Demand Notice annexed as Annexure A-7 of the Application, present application is not maintainable since the same is based on wrong facts and misrepresentation. c. That the Operational Creditor has not disclosed in her application that she is a shareholder of the Corporate Debtor Company and holds 2.97 % of the total shareholding in the Corporate Debtor and a total of 10.65% along with related party i.e., her husband. Hence, the present application filed by her is not maintainable. d. The Corporate Debtor further submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or, Mr. Satpal Chawla, Ms. Leena Chawla as repayment of their loan given to the Corporate Debtor Company as shareholders. The same has been categorically stated in the reply to Demand Notice at page 47 of the Application. Date Particulars Amount Deposited (In Rs. ) 06.01.2018 MCF 50850 02.02.2018 MCF 50850 13.03.2018 MCF 50850 11.04.2018 MCF 50850 25.05.2018 MCF 75000 h. That, the salary which was being received by the Operational Creditor was ₹ 39,100/- and not ₹ 75,000/- as has been wrongly represented by the Operational Creditor in her application under Reply. This fact has been mentioned by the Corporate Debtor Company in its Reply to the Demand Notice on Page No. 44 of the Application under Reply and the same has been confirmed by the TDS Certificate for Assessment year 2018-2019, filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16) of the IBC. That it is settled principle of law that CIRP cannot be initiated against the Corporate Debtor as it does not fall within the definition of 'Corporate Person as defined in Section 3(7) of the IBC. The Ld. Counsel also relied upon the Judgment of the Hon'ble NCLAT in case of Randhiraj Thakur v. M/s. Jindal Saxena Financial Services, Company Appeal (AT) (Insolvency) No. 32 and 50 of 2018 held that: '10. If the entire scheme of the I B Code is seen, it will be evident that the Code is to consolidate and amend the laws relating to reorganization and insolvency resolution of 'corporate persons', 'partnership farms' and 'individual' in a time bound manner. It is a self-contained Code which is exhaustive in nature when it comes to reorganization and insolvency resolution. However, an exception had been carved out while enacting the Code that the 'financial service providers' have been kept outside the purview of the Code. Being a consolidating legislation only those acts are permitted which are mentioned in the Code and it cannot be made applicable to financial service providers' including 'non-banking financial in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. Before proceeding further, it is pertinent to mention that the Corporate Debtor in its reply has stated that the present application needs to be dismissed as the Corporate Debtor is a Non-Banking Financial Company (NBFC) and has also annexed the copy of the Registration Certificate issued by Reserve Bank of India on 10.09.1999 as annexure R-3 of the reply, therefore clearly establishing the fact that the Corporate Debtor is an NBFC. The definition of 'Corporate Person' under section 3(7) of IBC is: a company as defined in clause (20) of section 2 of the Companies Act, 2013 (18 of 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 From the perusal of the above-stated provision, it is clear that a financial service provider is excluded from the definition of Corporate Person . This view has been duly affirmed by the Hon'ble NCLAT in the case of Randhiraj Thakur v. M/s. Jindal Saxena Financial Services, C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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