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TMI Blog2022 (12) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction to invoke its power for the purpose of initiation of CIRP proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/ inexecutable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetuate and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. Regard is to be had to the decision of Hon ble Supreme Court in the case of Jagmittar Sain Bhagat Vs. Health Services, Haryana, [ 2013 (7) TMI 988 - SUPREME COURT ] , in which it has been held that if the Adjudicating Authority does not have the jurisdiction to initiate the proceedings then the said proceedings are nonest in the eyes of law and such an issue can be raised even in appeal also. There is a merit in the appeal and the same is hereby allowed. - Company Appeal ( AT ) ( Ins. ) No. 983 of 2019 - - - Dated:- 19-12-2022 - [ Justice Rakesh Kumar Jain ] Member ( Judicial ) And [ Mr. Kanthi Narahari ] Member ( Technical ) For the Appellant : Mr. Anup Kumar , Ms. Shruti Singh , Ms. Neha Jaiswal , Advocates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot denied by the Respondent that the cancellation of the certificate was prospective in nature. 5. Counsel for the Appellant has argued that the day on which the application under Section 7 was filed i.e. 08.06.2018, the registration of Sungrowth as NBFC was in operation, therefore, the application under Section 7 of the Code was not maintainable. He has referred to Section 3(7), 3(8), 3(17), 3(18) and Section 5A of the Code to refer to the definitions of the Corporate Person, Corporate Debtor, Financial service provider, Financial sector regulator and Corporate Guarantor. He has also submitted that proceedings against the Financial service provider could have been initiated only in terms of Insolvency and Bankruptcy (Insolvency And Liquidation Proceedings Of Financial Service Providers And Application To Adjudicating Authority) Rules 2019 (for short Rules ) which came into force w.e.f. 15.11.2019 in terms of Section 227 read with clause z k of sub-section 2 of 239 of the Code. He has further relied upon two decisions of this Appellate Tribunal in the case of Randhiraj Thakur Vs. Jindal Saxena Financial Services Pvt. Ltd. Anr., 2018 SCC Online NCLAT 508 and Housing Developmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny of the following services, namely:- (a) accepting of deposits; (b) safeguarding and administering assets consisting of financial products, belonging to another person, or agreeing to do so; (c) effecting contracts of insurance; (d) offering, managing or agreeing to manage assets consisting of financial products belonging to another person; (e) rendering or agreeing, for consideration, to render advice on or soliciting for the purposes of- (i) buying, selling, 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; 3(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 reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Finance Corporation Ltd. (Supra) is inclusive and not limited to one which is provided in the said provision. 11. Admittedly, the present proceedings have been initiated against Sungrowth as a corporate guarantor. Section 5A defines Corporate Guarantor which means a corporate person. Corporate person, we have already explained that it would not include a financial service provider. Thus, looking from any angle, Sungrowth having the registration in terms of Section 3(17) as financial service provider by the financial service regulator in terms of Section 3(18) by RBI as on 28.03.2001 which continued up to 09.07.2018/11.07.2018 cannot in any case be called a banking institution. It has to be called a non-baking financial institution and in such scenario the application filed under Section 7 of the Code on 08.06.2018 was not maintainable on that date and therefore, the Adjudicating Authority had no jurisdiction to invoke its power for the purpose of initiation of CIRP proceedings. Similar situation arises in the case of Randhiraj Thakur (Supra) as well as Housing Development Finance Corporation Ltd. (Supra). Thus, looking from any angle, it is a case in which the Adjudicating Aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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