JUDGMENT :

Sudhansu Jyoti Mukhopadhaya, Chairperson

1. This appeal under Section 61 of Insolvency & Bankruptcy Code (hereinafter referred to ‘I & B Code’ for short) has been preferred by appellant against Order dated 31st January 2017 passed by ‘Adjudicating Authority’ in Mumbai Bench in C.P. No. 06/1 & BP/NCLT/MAH/2017, which reads as follows:

“The Petitioner/Operational Creditor filed this Creditor Petition u/s. 9 of Insolvency and Bankruptcy Code without filing certificate from the Financial Institution maintaining Accounts of the operational Creditor confining that there is no payment of this unpaid Operational Debt by the Corporate Debtor as set out in (c) of Sub-section (2) of Section (9) of this Code 2016.

Looking at non-filing of the certificate that is required to be filed along with this petition, this Bench had already given time to furnish the said document, but the counsel failed to furnish the said certificate. When this Bench has put it to the petitioner counsel how this Bench could pass this order without furnishing the certificate mandatorily to be filed along with the petition, the counsel appearing on behalf of the Operational Creditor submits that it is impossible to file copy of such Certificate from the Financial Institution for the Bank of the operational creditor is situated outside India, therefore, the compliances with such requirements shall be exempted.”

On perusal of Section 9 of Insolvency and Bankruptcy Code, it is evident, that it is mandatory to file copy of the Certificate from the Financial Institutions reflecting non-payment of the operational debt impugned, for the Operation Creditor has failed to annex copy of the said Certificate as required u/s. 9(3)(c) of the Code, this petition is liable to be rejected.

Accordingly, the same is hereby rejected.”

2. The question for determination in this appeal is whether filing of “a copy of certificate from the “Financial Institution” maintaining accounts of the Operational Creditor confirming that there is no payment of unpaid operational debt by the ‘Corporate Debtor’ as prescribed under clause (c) of sub-section 3 of Section 9 of the ‘I & B Code’ is mandatory or directory.

3. The appellant who claimed to be ‘Operational Creditor’ filed an application under Section 9 of ‘I & B Code’ for initiation of Corporate Insolvency Resolution Process, enclosing some of the relevant documents. However, no copy of “the certificate from the Financial Institution maintaining account of the Operational Creditor” as prescribed under clause (c) of sub-section (3) of Section 9 was enclosed. For the said reason the adjudicating authority rejected the application.

4. For deciding the issue it is desirable to notice relevant provisions of ‘I & B Code’ and Rules framed thereunder. Sub-section (14) of Section 3 defines ‘Financial Institution’ means—

(a) a scheduled bank;

(b) financial institution as defined in section 45-I of the Reserve Bank of India Act, 1934 (2 of 1934); and

(c) Public financial institution as defined in clause (72) of section 2 of the Companies Act, 2013 (18 of 2013); and

(d) such other institution as the Central Government may by notification specify as a financial institution;

5. The appellant is a foreign company of Hong-Kong having no office or bank account in India.

6. As the appellant has no account in any scheduled bank or ‘Financial Institution’ as defined in Section 45-1 of the RBI Act 1934 nor having such account with “Public ‘Financial Institution’” as defined in clause (72) of Section 2 of the Companies Act 2013 or with any other institution notified by Central Government as ‘Financial Institution’, it failed to enclose any certificate from ‘Financial Institution’ maintaining account of the ‘Operational Creditor’.

7. Learned counsel appearing on behalf of the appellant submitted that the foreign companies and multi-national companies having no office or having no account in India with any of the ‘Financial Institution’ will suffer to recover the debt a