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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 ..... vate Limited and Ors., [ 2020 (3) TMI 158 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI ] that the definition of Corporate Person in Section 3(7) of IBC specifically provides that it shall not include any financial service provider. The Corporate Debtor is a Financial Service Provider and hence the petition is rejected. - CP (IB) No. 246/KB/2021 - - - Dated:- 1-11-2022 - Shri Rohit Kapoor : Member (Judicial) And Shri Balraj Joshi : Member (Technical) For the Operational Creditor : Ms. Dipali Patel, Advocate Mr. Moiz Rafique, Advocate For the Corporate Debtor : Mr. Sailesh Mishra, Advocate ORDER Per Rohit Kapoor, Member (Judicial) 1. This Court convened through hybrid mode. 2. This is a Company Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed or value added by the Operational Creditor. b. The Corporate Debtor started to delay payments from March 2018 but emails were sent with a promises of Payment. It was vide email dated 30 January 2019 wherein the Corporate Debtor stated that there was no agreement and no amount pending. c. Vide emails dated 14 September 2018, 17 September 2018 and 01 November 2018, the Corporate Debtor has confirmed the corporate clients assigned to the Corporate Debtor as well as the email correspondences dated 26 October 2018 and 17 December 2018. d. Invoices were raised to the Corporate Debtor for the FY 2017-18 and FY 2018-19 which are outstanding. The last payment was made on 15 October 2018. e. A demand notice under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing provided by the FSPs. The Operational Debt in question is nowhere related to any kind of Financial Service as mentioned in the Code. Hence, the present Company Petition is well within the ambit of the Code. k. The Corporate Debtor is a Merchant Banker authorised by the Security Exchange Board of India ( SEBI ) as per section 3(18) of the Code however it is relevant to note here that the order of SEBI dated 31 July 2019 restrained the Corporate Debtor herein and its members from accessing the securities for misappropriating client securities, falsifying books of accounts, non-settlement of funds of clients etc. amounting to Rs.212.17Crore. l. SEBI on 06 May 2021 has declared the Corporate Debtor as a Defaulter . 6. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty) Rules, 2019 wherein it has been stated that no CIRP shall be initiated against a FSP which has committed a default under section 4, except upon an application made by the appropriate regulator in accordance with rule 6 of the Insolvency and Bankruptcy (Insolvency and Liquidation Proceedings of Financial Service Providers and Application to Adjudicating Authority) Rules, 2019. The present Company Petition has not been filed by the appropriate regulator, hence the same is liable to be dismissed. c. The Corporate Advisors Private Limited in the present Company Petition does not come within the definition of Corporate Debtor as defined under the Code and the judgment relied on by the Operational Creditor is not applicable in the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fault as allegedly mentioned in the said application are baseless and without any supporting evidence/documents/correspondences. Rather the correspondences made between the parties would show that no payment is due and payable to the applicant herein. i. It is most humbly submitted that, a calculation was worked out with the Applicant herein on or about in 1st week of February 2019, stating that the amount being receivable from the Financial Creditor to the Respondent. In the said work sheet the alleged claim made in attached Proforma invoices no. GCAPL/01, GCAPL/02, GCAPL/03 was dealt with as settled/paid, and as far as the claim made in the alleged Proforma invoice no. GCAPL/04, GCAPL/05 GCAPL/06 is concerned the same has been dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent very specifically denied such alleged claim made by the applicant, and stated that I am not aware of any such arrangements or commitments made from me or GCAPL . After the said receipt of the said mail the said applicant never demanded such alleged amount which can also be clear from further email correspondences like 8 February 2020, when the applicant made communication for non-receipt of previous certificate/credit but never demanded the alleged amount claimed in the instant application. It would also be pertinent to mention that in emails dated 7 April 2020 to 27 June 2020 the applicant is making several correspondences with the respondent of a different nature and different aspect of business without demanding any claim as made i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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