9911796707
TMI Blog2021 (2) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... Irrigation Private Ltd., under Section 9 of IBC 2016 for the alleged default on the part of the Corporate Debtor in settling the amount of Rs. 26,05,420/-as on 08.07.2019 along with Applicable Interest of 12% p.a. including the interest component towards the goods supplied. The details of transactions leading to the filing of this petition as averred by the petitioner are as follows:- a) The UM Lohia Two Wheelers Private Limited (Corporate Debtor) is a private limited company dealing in manufacture and sale of two wheelers such as motorbikes and related spare parts. The company is duly incorporated under the provisions of the Companies Act 2013 having its registered office at A-79, DDA Shed, Okhla Industrial Area, Phase 2, New Delhi-11002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Creditor. f) That the Operational Creditor issued the Demand Notice (Form 3) as per Rule 5(1) (a) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 to the Corporate Debtor via Speed Post on 10.08.2019 at the registered office and via email on 20.08.2019 for an amount of Rs. 26,05,420/- as on 08.07.2019 along with Applicable Interest of 12% p.a. g) That after the issuance of the demand notice, no communication has taken place between the Operational Creditor and Corporate Debtor. The applicant since then and till date is continuously demanding for making the outstanding payment and the Corporate Debtor are falsely assuring that the payments will be made, but however, no payments have been made, till ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Debtor. ii. The High Court of Calcutta in its judgment of Devendra Surana vs. Bank of Baroda [W.P. No. 5521 of 2017] has stated that, "A natural person and his sole proprietorship firm are the same legal entity. The liability of the sole proprietorship firm is that of the natural person carrying on business under its name. The sole proprietorship firm of a natural person and the natural person owning the firm do not enjoy the benefit of being treated as separate legal entities. " Therefore, it is submitted that a Sole Proprietary concern and its Sole Proprietor are one legal entity in law. It is for this reason, that the Sole Proprietor has unlimited liability, the income of the proprietary concern is considered as the income of the indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of "R.G. Steels V. Berrry Auto Ancillaries(p) Ltd" in which it has been held that sole proprietorship concern is not entitled to initiate CIRP on its own owing to the reason that Section 3(23) of the Code never intended to include sole proprietorship under the definition of "persons". 4. We have gone through the documents filed by the petitioner and heard the arguments made by the counsel of the petitioner. 5. Section 3(23) of the IBC defines person as: "Person" includes i. An individual ii. a Hindu Undivided Family iii. A Company iv. Trust v. a partnership vi. Limited Liability Partnership; vii. and includes a person resident outside India 6. A look at the definition specifies that it is an inclusive definition and hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the corporate debtor. Hence this Tribunal initiates CIRP on the corporate debtor with immediate effect. 10. A moratorium in terms of Section 14 of the Code is imposed forthwith in following terms: "(a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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