M.M.Kumar, President - (1.) This is an application filed under Section 420 of the Companies Act, 2013 and Section 65 of the Insolvency and Bankruptcy Code, 2016 read with Rules 11 and 154 of the National Company Law Tribunal Rules, 2016 with a prayer to recall order elated 27.06.2017 passed by this Tribunal exercising the power of Adjudicating Authority in C.P. No. (IB)-84(PB)/2017. It is appropriate to mention that on 27.06.2017 the petition filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'the Code') by the non applicant-petitioner namely M/s. Jindal Saxena financial Services Private Limited was admitted and insolvency professional was appointed. The present application has been filed on various grounds which are summarized as under:- 1. The petition before this Tribunal was not maintainable as respondent is not a corporate person in terms of the provisions of the Code. According to the applicant the petitioner/non-applicant deliberately concealed the factum that the applicant is registered as a Non-Banking Financial Institution with Reserve Bank of India within the meaning of Section 3 (18) of the Code. It has been duly registered as a Non-Banking Financial Institution on 16.03.2012 under section 45 (1A) of the Reserve Bank of India Act, 1934. Therefore, the respondent is a Financial Service Provider and therefore, excluded from the definition of a 'Corporate Debtor' because it is a financial service provider within the meaning section 3 (8). In that regard reference has been made to section 3 (7), (8) (17) of the Code. 2. The Insolvency and Bankruptcy Code, 2016 is a consolidated legislation and it is exhaustive in nature. In respect of financial service provider an exception has been carved out and such entity is kept outside the purview of the Code. In that regard reliance has been placed on a judgment of the Hon'ble Supreme Court rendered in the case of Fuerst Day Lawson Limited v. Jindal Exports Limited, 2011 8 SCC 333. 3. The plain language of the statute should be interpreted without any external aid as has been observed by the Hon'ble Supreme Court in Harbhajan Singh v. Press /Council of India, 2002 3 SCC 722. 4. The petition filed by non applicant-petitioner is liable to be dismissed for want of jurisdiction as a number of company petitions against the respondent for winding up are pending adjudication before Hon*ble Delhi High Court and the list thereof is as under: "a. Company Petition bearing No. "Co. Pet. 114 of 2016" titled "BRR Securities Pvt Ltd vs May Fair Capital Ltd"; b. Company Petition bearing No. "Co. Pet. 249 of 2016" titled "Orcus Capital Advisors Pvt Ltd vs May Fair Capital Ltd"; c. Company Petition bearing No. "Co. Pet. 274 of 2016" titled "Aten Capital Advisors Pvt Ltd vs May Fair Capital Ltd"; 5. The petition is even otherwise liable to be dismissed since the amounts under claim is disputed and unliquidated and that the petitioner has approached this Tribunal with unclean hands as no copy of the petition was served nor any legal notice was sent to the respondent.
(2.) The applicant has further argued that this Tribunal has inherent powers to recall an order which has been obtained by fraud as has been held in the cases of United India Insurance Company Ltd. V. Rajendra Singh, 2000 AIR(SC) 1165 and Indian Bank v. Satyam Fibers (India) Pvt. Ltd., 1996 5 SCC 550.
(3.) The petitioner-non applicant has opposed the application and has advanced the following arguments: - 1. The definition of 'financial service provider' in Section 3 (17) read with the definition of financial service as given in Section 3 (16) do not leave any manner of doubt that no petition under the Code could be filed against the financial service provider. According to Dr. Aggarwal the financial service as defined in section 3 (16) and the financial service provider as defined by Section 3 (17) do not cover a financial service provider who has accepted the deposits. According to the learned counsel the code has not excluded a class of person namely NBFC but has preferred to go by the test of financial service provider. The argument seems to be that an NBFC ipso facto has not been excluded from the definition of Corporate person as defined under Section 3(7) of the Code and the functional test has been devised by using the expression that a corporate person shall not include any 'financial service provider'. Therefore, it is urged that an NBFC which have various facet of other activities would not be covered by the expression 'Financial Service Provider' only when it has a transaction of the nature which is covered by the expression 'any financial service provider'. According to the learned counsel the transaction in question cannot be regarded as a financial service nor the petitioner could be regarded as financial service provider because inter corporate deposit to the tune of Rs. 44.50 crore was provided by the financial creditor and an agreement dated 25.04.2014 was executed and the amount was to be paid back after two years i.e. 25.04.2016 which was not paid alongwith interest. 2. An NBFC can transact business other than providing financial services such as buying goods, taking properties on lease, availing professional services of Advocates, Chartered Accountants, Company Secretary etc, 3. There is no exclusion of NBFC as a class under any provisions of the Code. The Reserve Bank of India has not granted a registration to the corporate debtor-applicant respondent permitting the acceptance of deposits from public. In fact, the registration certificate clearly mentioned that it was not valid for accepting public deposits. 4. The allegation by the applicant-corporate debtor is wholly unfounded with regard to service and reliance has been placed on tracking report from the Indian Post which indicate that the consignment details were not found. As a matter of fact, a copy of the petition was sent on 27.04.2017 which was duly received by the applicant-corporate debtor on 28.04.2017 and the notice of motion which was sent on 01.05.2017 was duly delivered on 03.05.2017. Despite service the applicant-corporate debtor has remained absent on all dates on 05.05.2017, 12.05.2017, 17.05.2017, 24.05.2017 and 25.05.2017. The matter was finally reserved for order. The order admitting the petition was pronounced on 27.06.2017. 5. The present application is not maintainable because the order dated 27.06.2017 is appealable to the NCLAT under section 61 of the Code.;