2018 (10) TMI 913

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....ppeal has been preferred by the appellant seeking, inter-alia, setting aside the order dated 8th January, 2018 passed by the Adjudicating Authority (National Company law Tribunal), New Delhi whereby and whereunder the application for recall preferred by the appellant is rejected. Further prayer has been made to set aside the order dated 27th June, 2017 passed by the Adjudicating Authority in Company Petition No. (IB)-84 (PB)/2017 whereby the application preferred by the 1st Respondent (Financial Creditor) under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the 'I&B Code') has been admitted.   2. One of the ground taken by the appellant is that the original order was passed by the Adjudicating Author....

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....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;"   5. Sub-section (17) of Section 3 of the I&B Code defines 'financial service provider' as under:   ....

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....eption carved out therein, therefore, cannot be treated to be a 'Corporate Debtor' within the  meaning of sub-section (8) of section 3 of the I&B Code. Sub-section (7) and (8) of Section 3 as referred above are quoted hereunder for ready reference:   "3. In this Code, unless the context otherwise requires,-   (7) "corporate person" means a company as  defined in clause (20) of section 2 of the Companies Act, 2013, a limited liability partnership, as defined in clause (n) of sub-section (1) of section 2 of the Limited Liability Partnership Act, 2008, or any other person incorporated with limited liability under any law for the time being in force but shall not include any financial service provider;"   (emphasi....

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....ad been carved out while enacting the Code that the 'financial service providers' have been kept outside the purview of the Code. Being a consolidating legislation only those acts are permitted which are mentioned in the Code and it cannot be made applicable to 'financial service providers' including 'non-banking financial institutions' and MFI's banks, which have been kept outside the purview of the Code.   11. The Adjudicating Authority has failed to notice the aforesaid provisions and passed the impugned order dated 8th January, 2018 initiating 'insolvency corporate resolution process' against 'M/s. Mayfair Capital Pvt. Ltd.', a 'financial service provider' (non-banking financial company).   12. As the appellant was not a par....