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TMI Blog2017 (5) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case the debt has not arisen out of the provisions of goods or services. The debt has also not arisen out of employment or the dues which are payable under the statute to the Centre/State Government or local body. The refund sought to be recovered is necessarily associated with the delivery of the possession of immovable property which has been delayed. Whether the Petitioner could be regarded as an 'Operational Creditor' within the meaning of section 5(20)? - Held that:- The 'Operational Creditors' are those persons to whom the 'Corporate Debt' is owed and whose liability from the entity comes from a transaction on operations. The final report of the Committee in para 5.2.1 defines 'Operational Creditor' like the wholesale vendor of spare parts whose spark plugs are kept in inventory by Car Mechanic and who gets paid only after spark plugs are sold to acquire the status of 'Operational Creditor' so and so forth. The Petitioner in the present case has neither supplied any goods nor has rendered any service to acquire the status of an 'Operational Creditor'. We are further of the view that given the time line in the code it is not possible to construe section 9 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days. On 25.1.2017 statutory notice under the Code was issued which has been duly served on the Respondent. 4. It is on the aforesaid facts and circumstances that we have been called upon to consider whether the Petitioner could be regarded as an 'Operational Creditor' within the meaning of section 9 read with section 5(7) (8) of the Code. 5. It is pertinent to mention that against the Respondent Company namely M/s AMR Infrastructures Ltd. C.P No.(ISB)-03(PB)/2017 titled as Nikhil Mehta Sons (HUF) v. AMR Infrastructures Ltd. was filed by invoking section 7 of the Code which was dismissed on 23.1.2017 by this Bench 6. We have heard learned counsel for the Petitioner at length and have not been able to persuade ourselves to accept the submissions to initiate Corporate Insolvency Resolution Process. It would be profitable to read relevant provisions of section 9 of the Code in order to understand the locus standi of the Petitioner to maintain this petition: Application for initiation of corporate insolvency resolution process by operational creditor. 9. (1) After the expiry of the period of ten days from the date of delivery of the notice or invoice de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es any person to whom such debt has been legally assigned or transferred (21) operational debt means a claim in respect of the provision of goods or services including employment or a debt in respect of the repayment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority; 8. It is evident from the perusal of the aforesaid definition of 'Operational Debt' that it is a claim in respect of provision of goods or services including dues on account of employment or a debt in respect of repayment of dues arising under any law for the time being in force and payable to Centre or State Government or local authority. It is thus clear that debt may arise out of provision of goods or services or dues arising out of employment or dues arising under any law for time being in force and payable to the Centre/State Government. The framer of the Code have also defined the expression 'Financial Debt' in section 5(8) to mean a debt which is disbursed against the consideration of time value of money. However the framer of the Code has not included in the expression 'Operation Debt' as an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Creditor' does not receive any payment from such a debtor or a corporate debtor or in the alternative he does not receive a notice of dispute. He must also satisfy the Tribunal about demand notice issued to the Operational Debtor/Corporate Debtor and is also requires to fulfil all other requirements of Section 9(3) of IBC. 7. In order to fall within the four corners of Operational Creditor as per Section 9 of the IBC it must be shown that he is a person to whom an 'Operational Debt' is owned or it is legally assigned/transferred as is patent from a bare perusal of Section 5(20) of IBC. The expression 'Operational Debt' has been defined by Section 5(21) of IBC and it must fulfil following substantive elements namely: (a) Debt arising out of provisions of goods; or (b) services; or (c) out of employment. It also covers dues arising under any law for the time being in force and payable to the Central or State Government or local authority. It is doubtful whether it would include all debts other than financial Debt' because we do not find any such legislative intendment from the Part II of IBC which deals with Insolvency and Liquidation for Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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