9911796707
TMI Blog2019 (7) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... is score alone the claim of the Applicant firm is not admissible. The claim submitted by the Applicant firm is not substantiated with any documentary evidence. In spite of the request of the Respondent/Resolution Professional made vide email communication dated 07.05.2018, for production of document in support of claim, no proof has been submitted by the Applicant firm till the rejection of the claim. Application dismissed. - MA/137/2019 in CP/39IB/2018 - - - Dated:- 23-4-2019 - CH MOHD SHARIEF TARIQ, MEMBER (JUDICIAL) For The Applicant : Mr B. Dhanaraj, Counsel For The Respondent : Mr K. Moorthy, Counsel ORDER CH MOHD SHARIEF TARIQ, MEMBER (JUDICIAL) 1. Under reference is an Application filed by the Applicant viz., M/s. Sri Krishna Constructions (herein referred as Applicant firm) under Section 60(5)(b) of the Insolvency and Bankruptcy Code, 2016 (I B Code, 2016) read with Rule 11 of the NCLT Rules, 2016 against the Respondent/Resolution Professional. 2. The prayers made by the Applicant firm in the Application are as follows :- a) Direct th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with all relevant documents to prove the existence of debt due to the Applicant firm. 6. It is stated that the Respondent/Resolution Professional vide an email dated 14.12.2018 informed one Mr. Vamsi Krishna, Partner in the Applicant Firm, that the claim of the Applicant firm stands rejected to which the Applicant firm on 02.01.2019 had raised objections stating therein that the rejection of claim was based on misconception of facts without giving opportunity of being heard and requested for de novo enquiry so as to furnish elucidation of certain facts incorrectly understood by the Respondent/Resolution Professional, but to no avail. 7. The Applicant firm states that the factual background for rejection of the claim of the Applicant firm by the Respondent/Resolution Professional, in a sequential manner, is as follows:- i) The Applicant is a Partnership Firm which was formed on 12.04.2004 with Partners viz., C. Neelamma, C. Krishna Kishore, C. Vamsi Krishna, C. Gopi Krishna and C. Satyanarayana, who are family members. Subsequently, Mr. C. Satyanarayana resigned from the Applicant firm and the Partnership was reconstituted on 18.02.2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the matter to Civil Court for trial. Consequently, the Applicant firm had filed a Civil Suit before the II Additional Senior Civil Judge and CJM at Bellary vide O.S. No. 306/2014. On appraisal of the facts, the II Additional Senior Civil Judge had ordered for attachment of the properties of the Corporate Debtor on 31.03.2015 and the subsequent plea of the Corporate Debtor to raise the attachment was rejected. v) The Corporate Debtor had raised the issue of limitation by way of filing an I.A. No.VI in O.S. No.306 of 2014 wherein the II Additional Senior Civil Judge and CJM at Bellary by its order dated 06.07.2017 had rejected the aspect of barred by limitation and proceeded with trial until the moratorium was implemented by this Hon ble Tribunal by its Order dated 12.03.2018. In addition to that, the Respondent/Resolution Professional had failed to consider the TDS deductions made by the Corporate Debtor for the payments made to the Applicant firm which would be suffice to prove the claim of the Applicant. 8. The Respondent/Resolution Professional has filed Report along with the typed set of documents stating therein that upon receipt of the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structions was made with effect from 1.4.2005. In that event, the validity and execution of the agreement dated 31.1.2005 much before the existence of partnership firm and the registration of the firm appears to he doubtful. Further, the learned counsel for the respondent pointed out yet another relevant factor that as out of 4 partners, 3 partners, who are the sons of C. Satyanarayana, were aged about 32 years, 31 years and 29 years, as per the partnership deed dated 18.2.2005, they were 11 years, 10 years and 8 years old during 1983-84, as such it is hardly believable that the petitioner company M/s. Sri Krishna Constructions has been in existence much before 1983-84 and deployed their machines in the respondent company and entered into regular agreement in respect of the past business dealings. 12. The Respondent/Resolution Professional states that the rejection of the claim has been made only after collating and verifying the documents with the available records from the Corporate Debtor. The observation made in the winding up Petition and the pendency of the civil litigation would not mandate that the claim of the Applicant firm is liable to be admitted without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered on 01.04.2005. 15. The courts while interpreting the provisions of the Section 69(2) of the The Indian Partnership Act, 1932 have held in a catena of the judgments that no suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. In this connection a reference could be made to the decisions given in Krishna Motor Service v. H.B. Vittala Kamath [1996] 10 SCC 881, Savariraj Pillai v. R.S.S. Vasrtred Co. 1989 (2) LW 418, and A.P.S. Baharudekn v. Antony, 1991 TLNJ 27. It is also a well settled proposition of law that the subsequent registration cannot cure the initial defect. A reference can be made to the case of Selvam Estates v. Thangapandia Maharajah, 1991 (1) MLJ 421. The object of the section appears to be to protect public against a firm carrying on business under a name which does not disclose to the public the names of the actual partners. In other words an unregistered firm has no legal basis to enter into the contract with third party, because such agreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent/Resolution Professional nor placed on the case file. In short, the claim submitted by the Applicant firm is not substantiated with any documentary evidence. In spite of the request of the Respondent/Resolution Professional made vide email communication dated 07.05.2018, for production of document in support of claim, no proof has been submitted by the Applicant firm till the rejection of the claim. 17. Further, it has been placed on record by the Respondent/Resolution Professional that the Corporate Debtor has not filed any balance sheet and Annual Return after the financial year 2012. Therefore, one cannot ascertain the details of the receivable and debts of the Corporate Debtor for interregnum period. Thus, keeping in view the totality of the circumstances and particularly the observation made by the Hon ble High Court of Madras vide order dated 20.03.2013 passed in CP 326/2010 and the reasons as stated in the report filed by the Respondent/Resolution Professional, the claim of the Applicant firm is highly doubtful and is not worth to be considered for admission and the same has rightly been rejected by the Respondent/Resolution Professional vide his ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
