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TMI Blog2019 (6) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... Jaipur-302 017 in the capacity of an operational creditor seeking to initiate the corporate insolvency resolution process (CIRP) under section 9 of the Insolvency and Bankruptcy Code, 2016 ("IBC, 2016") in view of the defaults committed in relation to the invoices raised for supply of goods to the corporate debtor. In the prescribed application, as is required to be filed by the operational creditor under the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. In Part-II of the said form, it is stated about the corporate debtor that it is having a paid-up share capital to the extent of Rs. 1 crore. Further perusal of the said form shows that under Part-III, the operational creditor has proposed an interim resolut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the corporate debtor has contended that the bank statement placed on record commences only from November 2, 2018 and does not contain all the transactions and hence reliance cannot placed in relation to unpaid invoices. An objection is sought to be also made, taking into consideration, section 9(3)(c) of the IBC, 2016 in relation to the banker certificate issued stating that the documents which has been produced as annexure A10 cannot be said to be in compliance with the above noted provisions. Further in relation to the claim of Rs. 4,42,214 stated to be actual outstanding by the operational creditor, two invoices forming part of the said amount is being disputed by the corporate debtor, namely, invoice No. 344 dated October 14, 2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffidavit filed in support of the petition, disputes have also been raised that the same is not in compliance with law. 6. On February 28, 2019 the matter was taken up and the submissions of respective counsels appearing for the parties were heard in detail. A query was addressed by the Tribunal to learned counsel for the operational creditor as to the competency of a sole proprietary concern to file a petition under the provisions of the IBC, 2016 and as to whether it can be considered as a legal entity. However, to the said query, learned counsel for the operational creditor was not in a position to suitably justify as to how the operational creditor is competent to maintain a petition under the provisions of the IBC, 2016. In the circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd (g) any other entity established under the statute ; and includes a person resident outside India ;" 8. A perusal of the above definition of a person even though, includes various entities including Hindu Undivided Family, however has omitted a sole proprietary concern within its ambit, even though, it is seen that the definition of a person includes any individual also a person resident outside India as well. 9. Taking into consideration these 2 definitions as contained in section 3(23) of a "person" and section 5(20) of an "operational creditor" under the IBC, 2016 and considering the provisions of section 9 which entitles only an operational creditor to initiate proceedings seeking for corporate insolvency resolution process un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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