E N Palanisamy Vs. Bank of Baroda & 3 Ors – NCLAT Chennai
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E N Palanisamy Vs. Bank of Baroda & 3 Ors – NCLAT Chennai Read Post »
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E N Palanisamy Vs. Bank of Baroda & 3 Ors – NCLAT Chennai Read Post »
The Adjudicating Authority observed that the Reserve Bank of India by exercising its power under Section 45-IA of the Reserve Bank of India Act has granted a certificate to the Respondent/Corporate Debtor Company to carry on business of non-banking financial institution subject to the condition given on the reverse. Now we consider this aspect whether on the basis of the certificate, the Respondent/Corporate Debtor can claim exemption. On perusal of the provision referred to Section 3(7)-Corporate Person, of IBC, it is clear that the financial service provider is excluded from the definition of the Corporate Person. On conjoint reading of Section 3(16) and 3(17), it is not necessary that the Financial Service Provider must accept the deposit. Rather the financial service includes any of the service, which come under clause (a) to (i) of Section 3(16) of IBC, 2016. The definition of Financial Service is not only limited to 9 activities as referred to Section 3(16)(a) to (i), rather the aforesaid Clauses (a) to (i) are inclusive, which means there are other services which also come within the meaning of financial services. The registration of certificate issued by the Reserve Bank Of India, Respondent/ Corporate Debtor to carry on business of non-banking financial institution is subject to the conditions. Therefore, we are unable to accept the contention of the Applicant that the Respondent/ Corporate Debtor is not a non-banking financial service provider.
The provisions u/s Section 12A read with CIRP Regulation 30A pertaining to the withdrawal of the Applications filed under Section 7, 9 or 10 of the IBC, 2016 provides for filing an Application by the Applicant in the C.P. In the instant case, the C.P. was filed U/s. 10 of the IBC, 2016, by the Corporate Applicant i.e. M/ s. Aradhya Wire and Ropes Private Limited itself. On admission of the C.P. the Corporate Debtor was initially taken over by the RP and after passing of the orders of the Liquidation by the Liquidator. The instant Application has been filed by the Liquidator on receipt of the Application from one of the Promoter of the Corporate Debtor. The Hon’ble NCLAT in Shweta Vishwanath Shirke & Ors. Vs. The Committee of Creditors & Ann (2019) ibclaw.in 470 NCLAT held that the Promoters/Shareholders are entitled to settle the matter in terms of the Section. 12A and in such case, it is always open to Applicant to withdraw the Application. Hence, we are of the view that the instant Application filed by the Liquidator U/s. 12A of the IBC, 2016 is maintainable. The Hon’ble NCLAT in V. Navaneetha Krishnan Vs. Central Bank of India, Coimbatore & Anr. (2018) ibclaw.in 298 NCLAT held that even during the Liquidation period, if any person, not barred u/ s. 12A of the Code satisfy the demands of the Committee of Creditors, such person may move before the Adjudicating Authority for withdrawal of the proceedings.
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In this case, the Adjudicating Authority held that (i) Application u/s 9 of IBC filed by the Unregistered Partnership firm is maintainable. (ii) From the provision under Section 215(3), it can be inferred that it is optional for the Operational Creditor to serve the demand notice with the Information Utility. Since the service of demand notice with the Information Utility will not cause any prejudice to the Corporate Debtor in any manner. (iii) If acknowledgement of debt is made basing on the contents of an attachment, which is an external file exported/attached with the mail and if that attachment is not duly authenticated by signature of the authorized person and date or/and Company Seal, it is not possible to ascertain beyond doubt to which date the document is generated or belongs to.
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