Akhilesh Kumar vs Hdfc Bank Limited And Anr

Company Appeal (AT) (Ins) No. 895 of 2023

IN THE MATTER OF: Akhilesh Kumar ....Appellant

Vs.

HDFC Bank Ltd. & Anr. ....Respondents

Present: For Appellant: Mr. Mohit Chaudhary, Mr. Prakhar Mithal, Mr. Ram Mandil, Advocates For Respondents: Mr. Bheem Sain Jain, Mr. Himanshu Lilani, Mr. Ayush Singhal, Advocates for HDFC. Mr. Sumesh Dhawan, Mr. Praful Jindal, Ms. Vatsala Kak, Mr. Shaurya Shyam, Advocates for IA No. 398 of 2024- Impleadment.

ORDER

(Hybrid Mode)

25.01.2024: This appeal is directed against the order dated 05.07.2023,

passed by the National Company Law Tribunal, New Delhi Bench in CP No.

(IB)- 25(ND)/2023 by which an application filed by the HDFC Bank Ltd.

(Financial Creditor) under Section 7 of the Insolvency and Bankruptcy Code,

2016 (for short 'Code') read with Rule 4 of the Insolvency and Bankruptcy

(Application to Adjudicating Authority) Rules, 2016 (Rules) against Madhuvan

Tieup Pvt. Ltd. (Corporate Debtor) has been admitted.

2. In this appeal, the issued raised by the Appellant is that the appellant is

a Non- Banking Financial Company (for short 'NBFC'), therefore, the

application filed under Section 7 is not maintainable against it. In this regard,

CA (AT) (Ins) No. 895 of 2023 2

Counsel for the Appellant has referred to a certificate of Registration attached

as Annexure -A3, with the appeal, issued on 11.02.2003 at Kolkata by the

Department of Non-Banking Supervision (Regional Office) of the Reserve Bank

of India.

3. Counsel for the Respondent has challenged this contention and

submitted that as per his information and research, the appellant is not a

registered NBFC by the RBI albeit the Kolkata branch. In this regard, it is

submitted that in the list of the Registered NBFC, issued by the RBI the name

of the appellant is conspicuously absent.

4. The Appellant was afforded an opportunity to produce the original of

Annexure-A 3 which has not been done. However, on 18.01.2024, the following

order was passed by us which is reproduced as under:

"The Appellant was directed on 20.11.2023 to file the Registration Certificate issued by the RBI. No such certificate has been filed rather an Order of the Hon'ble Delhi High Court dated 08.01.2024 has been produced which is purported to have been passed in Writ Petition No. 298/2024.

Counsel for the Appellant has submitted that he has applied to RBI for Registration Certificate through email. On the other hand, Counsel for the HDFC has submitted that the name of the present Appellant is not in the list of NBFC maintained by the RBI. Counsel for the HDFC is directed to file an Affidavit to this effect that name of the Appellant was not there when the Order of Admission was passed.

Adjourned to 25th January, 2024".

CA (AT) (Ins) No. 895 of 2023 3 5. Apropos the aforesaid order, affidavit dated 22.01.2024 has been filed by

Mr. Ankush Saini, S/o Mr. S.S. Saini, Assistant Vice President, HDFC Bank

Ltd. in which he has averred that the deponent has sought the information

under the Right to Information Act, 2005 ('the Act') with a particular query

which read as under:

"Was the Company by the name of Madhuvan Tie up Pvt. Ltd. (CIN No. U51909DL1996PTC264255), registered as Non- Banking Financial Company (NBFC) with the RBI on 11.02.2003?

The RBI has answered this query in the following terms:

"The NBFC- Madhuvan Tie up Pvt. Ltd. (CIN No. U51909DL1996PTC264255) is not registered with RBI as an NBFC."

"The list of NBFCs registered with RBI is available on the website and can be accessed using the link- https://rbi.org.in/Scripts/BS NBFCList.aspx".

6. It is further submitted by the Respondent that the complete list running

into almost thousand pages has also been placed on record in which the name

of the Appellant as a registered NBFC by the RBI does not figure. On the basis

of the aforesaid evidence, Counsel for the Respondent has submitted that the

contention of the Appellant that it is a registered NBFC by the RBI is totally

false.

7. Counsel for the Appellant has then submitted that the RBI has taken a

decision on the basis of the list which has been released on the website

whereas it has been submitted that the Appellant was listed at Kolkata and

was transferred to Delhi and the Appellant has already approached the Hon'ble CA (AT) (Ins) No. 895 of 2023 4

Delhi High Court in a writ petition in which the prayer has been made for a

direction to the RBI to issue the certificate in original to the Appellant. It is

submitted that the said writ petition is still pending.

8. We have heard Counsel for the parties and perused the record with their

able assistance. The issue involved in this case travels into a narrow compass

because the only defence taken by the Appellant, to avoid CIRP, is that the

Appellant is a NBFC Registered by the RBI. However, this contention is

contrary to what the RBI has said while issuing the information to the

Respondent under the Act and stating that the Appellant is not registered with

the RBI as a NBFC. Moreover, the list of NBFC registered with the RBI,

available on the Website, also does not show that the appellant is recorded as

such.

9. In such circumstances, we hold that the appellant has failed to prove in

this case that the appellant is a registered NBFC by RBI, therefore, the issue

raised by the appellant is decided against the appellant.

10. In view of the aforesaid discussion, the present appeal fails and hence

dismissed.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Ajai Das Mehrotra] Member (Technical) sr/kam CA (AT) (Ins) No. 895 of 2023