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TMI Blog2020 (7) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... , in accordance with law as it is and not jus dare in accordance with law as it should be. Also, the respondent has also raised some objections with regard to the amount of debt relating to one invoice. The application, so filed by the applicant is not maintainable and is bad in law as well as in facts. - C.P. NO. (IB) 316/9/NCLT/AHM/2018 - - - Dated:- 3-3-2020 - Ms. Manorama Kumari, Judicial Member And Chockalingam Thirunavukkarasu, Technical Member For the Applicant : Ravish Bhatt and Pravin Mahajan, CA For the Respondent : Navin Pahwa, Sr. Adv., Ms. Saumitra Chaturvedi Thakkar and Pahwa ORDER MS. MANORAMA KUMARI, JUDICIAL MEMBER 1. The instant application is filed by M/s. S. Crane Engineering Wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011-12 from its bankers viz. Dena Bank and Central Bank of India for the purpose of securing payments towards supplies made by the operational creditor. 5. The petitioner has further stated that during FY 2009-10 to 2016-17 ad-hoc payments aggregating to ₹ 2,01,87,212/-were received from the corporate debtor. That, the last such payment of ₹ 50,000/- was received on 19th January, 2017. 6. The operational creditor has further claimed that an amount of s. 49,20,871/- is due and payable by the corporate debtor towards operational debt which includes interest @ 18% per annum payable on the principal outstanding of ₹ 32,11,377/-. 7. The operational creditor has further stated that having failed to receive the overdue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y itself. 11. It is further submitted by the corporate debtor that against purchase order dated 9-7-2009, the operational creditor was to supply S Crane and as per clause 4 of the purchase order, the corporate debtor was required to make 5% advance payment after approvals of drawings by corporate debtor and to pay balance 95% through letter of credit. Accordingly, in terms of clause 4 of the purchase order, the corporate debtor made 5% advance payment of ₹ 1,81,402/- on 3-10-2009 and opened letter of credit for the balance 95% payment. At the time of delivery of crane to the corporate debtor, operational creditor presented the documents to the bank and the bank in turn sent the documents to the corporate debtor for acceptance. Sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent company vide letter dated 14th May, 2018 (page 187 of application) inter alia informing that the invoices based on which and referred to in the demand notice were not received by the respondent. On perusal of the record it is found that the petitioner has placed reliance on invoice No. E C/60/14-15 and E C/6/15-16 dated 22-5-2015 while raising the claim towards unpaid operational debt as per detailed computation of default (page 33 of the application) attached to the demand notice (page 33). On perusal of the record it is found that the operational creditor has produced copy of all the corresponding purchase orders placed by the respondent against which the supply has been made except the two invoices dated 30-3-2015 and 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hip concern unlike a company or a partnership is not a legal entity and therefore any proceeding initiated by it would be a nullity. On this count alone the application is bad and is not maintainable. 20. On perusal of the records it is found that the instant application is filed by/in the name of M/s. S, Crane Engineering Works as operational creditor. Even in part I of form 5 name of the operational creditor is shown/written as M/s. S. Crane Engineering Works. 21. In this regard it is pertinent to refer some of the important decisions which are as under:- In Miraj Advertising Corporation v. Vishaka Engineering 115 (2004) DLT 471 it is held that A proprietorship firm has no legal entity like registered firm, A suit cannot be init ..... X X X X Extracts X X X X X X X X Extracts X X X X
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