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TMI Blog2020 (1) TMI 1391X X X X Extracts X X X X X X X X Extracts X X X X ..... ] read with rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 [hereinafter referred to as "the Rules"], as operational creditor/applicant. 2. The respondent/corporate debtor is a company registered under the Companies Act, incorporated on 20-11-2005 having identification No. U15201GJ1996PLC031162 and having registered office at Ashram Road, Ahmedabad, Gujarat State. Authorised share capital of the respondent company is Rs. 30,00,000/- and paid up share capital is Rs. 28,51,470/- 3. The applicant/operational creditor company is engaged in the business of supply of refined palmolein oil loose and had supplied goods to the respondent from time to time vide several invoices. That, the said material wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 25 of the petition. 6. It is further stated by the operational creditor that the respondent company had bought goods amounting to total Rs. 94,45,951/- during the period from 10-4-2018 to 6-8-2018 against which the respondent company had paid total of Rs. 45,04,174/- during the said period. That, the petitioner has taken credit of the amounts received during the said five months as per FIFO method and adjusted the receipt of amounts against the bills raised. Thus, the respondent did not make payment towards total six bills and made payment of half of the first bill. So, practically, the outstanding is towards five and a half bills. 7. It is further stated by the operational creditor that when the present petition was filed by the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds almost the entire claim amount after filing of the present petition. Further, if it is the case of the respondent that it had not received the goods and if the said defence if believed for a moment then also the question arises that why did the respondent make part payment of the first bill if it had not received the goods. That, even if the defence taken by the respondent that goods towards last five bills were not received by it, still the amount outstanding towards one bill which was partly paid is still more than the prescribed limit of Rs. 1 lac under the I&B Code and for that reason only the present petition is liable to be admitted. 10. The operational creditor has further stated that having failed to recover the operational debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 138. 14. As regards the five cheques each of Rs. 10 lacs issued by the corporate debtor in favour of the operational creditor dated 18-12-2019, it is stated by the corporate debtor that the said cheques are signed by the earlier director who has already signed with effect from 9-2-2016. That, after 24-2-2016, the respective bank - Bank of India, Income Tax Char Rasta Branch has not issued any cheques to the corporate debtor in view of the fact that the account of the respondent company was seized by Assistant Sales Tax Commissioner, Ghatak 32, Vijapur and, therefore, prima facie it proves that the five cheques so issued in the year 2013 and the same not of the series of the year 2018. The respondent has further contended that if at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be initiated in the name of an unregistered proprietorship firm and the said suit is to be instituted in the name of proprietor". 18. Thus, a proprietorship firm is not a legal entity - it is only the proprietor of the firm who is a legal entity and as such the petition should have been filed by the sole proprietor in his name on behalf of his sole proprietorship firm. 19. Section 3 of sub-section (23) speaks about the definition of a person which read as under: - "person" includes: (a) An individual; (b) A Hindu undivided family; (c) A company; (d) A trust; (e) A partnership; (f) A limited liability partnership; and (g) Any other entity established under a statute, and includes a person resident outside India. 20. On per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g from 12000 kgs. to 12500 kgs. @ Rs. 70.00 to Rs. 71.00 per kg. Considering the quantity of goods claimed to have been supplied by the operational creditor to the corporate debtor, it is difficult to believe that such huge quantity of goods are/were transported manually/physically as claimed by the operational creditor. On perusal of the records it is also found that the operational creditor has miserably failed to produce/quote and place on record important documents like the mode of transport, delivery note/challan, buyer's order number, date of despatch etc. to validate his claim amount. 25. Under the facts and circumstances as discussed in sequel, the application so filed is not maintainable and hence stands dismissed- No order as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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