2019 (6) TMI 831 - Tri - Insolvency and Bankruptcy

Initiation of corporate insolvency resolution process - defaults committed in relation to the invoices raised for supply of goods to the corporate debtor - section 9 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT - An operational creditor as defined under the provisions of the IBC, 2016 should be a person as defined under section 3(23) of the IBC, 2016 in order to maintain a petition under section 9 of the IBC, 2016. In the absence of a sole proprietary concern not being included in the definition a person , this Tribunal is of the considered view that this petition cannot be maintained. The IBC, 2016 is a code by itself and a petition should succeed or fail in terms of the provisions contained judgments pronounced by judicial authorities as to the competency of a sole proprietary concern to initiate legal proceedings in its own name, as has been done herein, may not be out of context. Petition dismissed.

Summary

Issues:
1. Competency of a sole proprietary concern to file a petition under the IBC, 2016.

Analysis:

1. The petitioner, a sole proprietary concern, filed a petition seeking to initiate the corporate insolvency resolution process under section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC) against the corporate debtor for defaults related to invoices for the supply of goods. The operational creditor proposed an interim resolution professional and claimed an operational debt of ?7,93,035 along with interest. The corporate debtor responded, disputing the claim and contending that certain invoices were not received, and settlement discussions had taken place. The corporate debtor also challenged the authorization of the petitioner to file the petition and raised objections regarding the affidavit filed in support of the petition.

2. During the proceedings, the Tribunal questioned the competency of a sole proprietary concern to file a petition under the IBC. The definition of "operational creditor" under the IBC includes a person to whom an operational debt is owed. However, the definition of "person" under the IBC does not explicitly mention a sole proprietary concern. The Tribunal analyzed the definitions of "person" and "operational creditor" under the IBC and concluded that for a petition to be maintained under section 9 of the IBC, the operational creditor should fall within the definition of a "person" as outlined in the Code. Citing a precedent, the Tribunal emphasized that a sole proprietorship concern may not be considered a legal entity and, therefore, cannot maintain legal proceedings in its own name.

3. Based on the analysis of the definitions and legal precedents, the Tribunal determined that the petitioner, being a sole proprietary concern, did not meet the criteria of a "person" as defined under the IBC. Consequently, the Tribunal held that the petition filed by the sole proprietary concern could not be maintained under the IBC. Referring to the judgment in Svapn Constructions v. IDPL Employees Cooperative Group Housing Society Ltd., the Tribunal highlighted that legal proceedings initiated by a sole proprietorship firm, which is not recognized as a legal entity, are not maintainable. Therefore, the Tribunal dismissed the petition on the ground of the petitioner's lack of competency as a sole proprietary concern to file proceedings under the IBC.

4. In conclusion, the Tribunal dismissed the petition on the preliminary ground of the petitioner's status as a sole proprietary concern, which did not align with the definition of a "person" under the IBC. The judgment emphasized the importance of adhering to the legal framework and established precedents in determining the eligibility of entities to initiate legal proceedings, particularly in insolvency matters governed by the IBC.