9911796707
TMI Blog2021 (2) TMI 1094X X X X Extracts X X X X X X X X Extracts X X X X ..... GUPTA AND ORS. [ 2020 (2) TMI 1442 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] where the Section provides that the provisions of this Code shall apply to partnership firms and proprietorship firm. - However, without entering into legal issue if such Trade Name is person , we find that it was a curable defect. The learned Counsel for Appellant has rightly relied on the Judgement in the matter of Neeta Saha . The Adjudicating Authority should have given opportunity to the Appellant to appropriately amend the Application in part 1 of the Format where name of the Operational Creditor is shown. Mr. Piyush Bangar can show his name and suffix that he is sole proprietor of M/s. Mateshwari Minerals. The matter is remitted back to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t maintainable and bad in law. 3. We have heard Counsel for both sides and seen the Appeal and Reply filed. 4. The findings recorded by the Adjudicating Authority read as under:- Findings 8. Notwithstanding above as those are the statements/pleadings of the parties in support of their claim, before proceeding further it is necessary to deal with the legal issue i.e. whether any proprietorship firm claiming to be operational creditor can file a proceeding/suit as it is not legal entity in the eye of law. A proprietor ordinarily means a person who carries on trade or business in the name other than his name. the law on this aspect is fairly well settled. No suit can be instituted by a sole proprietorship firm in its own name u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 13. On perusal of the definition it is clear that person must fall on the above category(s). In the case on hand, the petition is filed in the name of M/s. Mateshwari Minerals, a proprietary concern as operational creditor, who is not a person for the purpose of filing the application u/s. 9 of the I B Code. Hence, on this ground itself the application is not maintainable. 14. It is also the duty of the Adjudicating Authority to dispose of cases jus dicers , in accordance with law as it is and not jus dare in accordance with law as it should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Appellant then relies on Judgement of this Tribunal in the matter of Neeta Saha, Member of Suspended Board of Palm Developers Pvt. Ltd. Vs Mr. Ram Niwas Gupta (Proprietor of Ram Niwas Gupta sons) Anr. in Company Appeal(AT) (Insolvency) No. 321 of 2020 (Annexure E Page 68) to state that in that matter also, when the Operational Creditor had filed the Application in the name of proprietorship, objections were raised and the Adjudicating Authority in that matter had allowed amendment to the Application and this Court had, inter alia, noticed Section 2(f) of IBC and upheld the Orders of the Adjudicating Authority allowing amendment or curing of defect. 7. Reliance is also placed on Judgement in the matter of Bhagwati Vanaspati T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the Application and if it was of the opinion that there is a defect, the Appellant should have been allowed to cure the same. 9. The learned Counsel for the Respondent argued that she is not objecting to the maintainability on the issue of description of the Applicant before the Adjudicating Authority. She, however, tried to make submissions with regard to the merits of the Application under Section 9. 10. Although the Adjudicating Authority in para 15 (as reproduced above) referred to part of dispute raised by the Respondent, the Adjudicating Authority has not dealt with or decided the same. As such, in the Appeal, we are not going into the merits of the Application under Section 9 of IBC. 11. As regards the question of main ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
