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TMI Blog2022 (11) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... de, 2016 ("Code") by Value Ideas Investment Services Private Limited ("Operational Creditor"), a company incorporated under the provisions of the Companies Act, 1956 and represented by its Director, Mr. Manish Kumar Bansal, seeking to initiate Corporate Insolvency Resolution Process ("CIRP") against Oneview Corproate Advisors Private Limited formerly known as Guiness Corporate Advisors Private Limited ("Corporate Debtor"). 3. The Corporate Debtor is a company limited by shares incorporated on 24 May 1976, having CIN: U74999WB1976PTC030545, with the Registrar of Companies, West Bengal, Kolkata. Its registered office is at 18, Deshapriya Park Road, 2nd Floor, Kolkata- 700026, within the State of West Bengal. Therefore, this Bench has jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... June 2021. f. The Corporate Debtor replied to the Demand Notice dated 09 June 2021 and was received on 22 June 2021. g. The Corporate Debtor in its Affidavit-in-reply dated 20 December 2021 has stated that the amount is undisputed [check] by the Corporate Debtor. h. The transactions are towards Professional and Business Development Consultancy Services rendered by the Operational Creditor to the Corporate Debtor. i. On the assertion of the Corporate Debtor that the petition is not maintainable as it is a financial service provider, the learned Counsel placed reliance on Apeejay Trust v. Aviva Life Insurance Co. India Ltd. (2019) 217 CompCas 427 (paragraphs 11 and 12) wherein the learned NCLT, New Delhi Bench held that "....th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : a. Copies of invoices dated 30 March 2018 to 20 March 2019; annexed to the petition and marked as Annexure D (Colly.) at pages 59-64 b. Copies of email correspondences; annexed to the petition and marked as Annexure 'E' at pages 65, Annexure G at Page 71, Annexure H (Colly.) at Pages 72-112. 7. The Corporate Debtor filed its reply affidavit affirmed on 20 December 2021 wherein it states as follows: a. The Corporate Debtor is a financial service provider as defined under section 3 (17) of the said code dealing in professional services (as defined under section 3 (16) of the said code), related to financial product being securities (as defined under section 3 (15) of the said code), as having been engaged in business of providing f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntation of the Insolvency and Bankruptcy (Insolvency and Liquidation Proceedings of Financial Service Providers and Application to Adjudicating Authority) Rules, 2019. Thirdly, the order is contrary to the intent of the statute. d. In support of the above contention, the learned Counsel placed reliance on Randhiraj Thakur v. Jindal Saxena Financial Services Private Limited and Ors. Company Appeal (AT)(Ins.) Nos. 32 & 50 of 2018 and The Capital Court v. PHC Holding Private Limited. Company Appeal (AT) (Ins.) No. 26 of 2019 e. The application allegedly filed under section 9 of the said Code, does not comply the mandatory provision of section 9(3) of the Code. In the present case the alleged claim were all along, disputed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... never materialized / executed by the Respondent and as such any entitlement of the applicant cannot and does not arise. II. Proforma invoice no. GCAPL/05 relates to the mandates which are not complete and hence the question of claiming any demand for the same by the applicant does not arise. III. Proforma invoice no. GCAPL/06 relates to the market making (which can only be done by member of stock exchange), but the fact remains that the respondent company is not a member of stock exchange and as such not entitled to market making. Hence, the question of any entitlement for the said alleged invoice cannot and does not arise. Accordingly it can safely be construed that the claim made in the said application is baseless, totally false a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the respondents as has been falsely alleged in the application, nor the applicant has refer to any documents/evidence for veracity of the same, as such there exists no valid contract between the respondent and the applicant, nor there exists any unpaid invoices. Analysis and Findings 8. We have heard the learned Counsel for the Operational Creditor and the learned Counsel appearing for the Corporate Debtor. 9. The main issue to be considered is whether this petition is maintainable under section 9 of the Code. It is pertinent to note that the Corporate Debtor is a Financial Service Provider Annexure A at Page 5 of the Affidavit in reply as is evident from the Registration Certificate that has been filed. The Hon'ble NCLAT has reite ..... X X X X Extracts X X X X X X X X Extracts X X X X
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