9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (1) TMI 458 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor and the Corporate Debtor were the Partners of the Firm - joint and several liability with the other partners or with the Firm - existence of debt and dispute or not - HELD THAT - It is observed by the Bench that the Operational Creditor and the Corporate Debtor were the Partners of the Firm. This Bench is well aware about the relationship between the Partners with its Partnership Firm and also accepts the contentions of the Operational Creditor with respect to the joint and several liability with the other partners or with the Firm. However, the Bench is of considered view that even the liability of the Corporate Debtor is proved in all aspect, the IBC does not protect the interest or claim of the Partner against another Partner or the Firm. The claim and the cause of action arose on the transaction between the Partners. Therefore, the Petition itself is not maintainable in the eye of law. The Operational Creditor may be liable to the claims against the Corporate Debtor not under the IBC but under the any other law which provides the remedy to the Operational Creditor. The Retired Partner has no right under the IBC to file claim against the Partner or the Firm. This Bench rejects the Application filed by Operational Creditor under section 9 of the Code - Petition dismissed.
Issues:
Company petition under section 9 of the Insolvency & Bankruptcy Code, 2016 (IBC) seeking Corporate Insolvency Resolution Process (CIRP) against a Corporate Debtor. Detailed Analysis: Issue 1: Jurisdiction and Default The Operational Creditor filed a petition seeking CIRP against the Corporate Debtor for failing to pay a sum of ?75,00,000, with the default date as 18.04.2016, the date of dishonour of the cheque. The Corporate Debtor was incorporated under the Companies Act, 1956, and the Tribunal had jurisdiction over the matter. Issue 2: Operational Creditor's Claim The Operational Creditor, a partner in a partnership firm, sought payment as per a Retirement Deed executed on 31.12.2015, where the Firm agreed to pay the Operational Creditor ?75,00,000. The cheque issued by the Firm was dishonoured, leading to the CIRP petition. Issue 3: Corporate Debtor's Defense The Corporate Debtor argued that the claim did not fulfill the definition of an "Operational Creditor" under the IBC. They contended that the claim should be against the partnership firm, not the company, and denied the existence of the debt and default. Issue 4: Tribunal's Decision The Tribunal considered the partnership dynamics and held that the IBC does not protect a partner's claim against another partner or the firm. Citing a NCLAT judgment, the Tribunal ruled that a retired partner has no right under the IBC to file a claim against the partner or the firm. As such, the petition was deemed not maintainable under the law, and the application under section 9 of the Code was rejected, leading to the dismissal of the petition. This detailed analysis covers the jurisdictional aspect, the nature of the Operational Creditor's claim, the Corporate Debtor's defense, and the Tribunal's decision based on legal precedents and interpretations of the IBC.
|
