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TMI Blog2019 (5) TMI 1883X X X X Extracts X X X X X X X X Extracts X X X X ..... lt can come before this Tribunal by way of an application preferred under Section 9 of the Insolvency and Bankruptcy Code, 2016 - It is thus seen from the definition of a person as defined under Section 3(23) of Insolvency and Bankruptcy Code, 2016 that while an 'individual' has been included, however, there is no mention of a sole proprietary firm specifically to be treated as a person under IBC, 2016. It is by now trite that Insolvency and Bankruptcy Code, 2016 is a separate code by itself and where there is a specific definition of word and expressions as defined in the Insolvency and Bankruptcy Code, 2016 namely IBC, 2016 the definition of a such a word or expression cannot be imported from any other Act which is also explic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by M/s. Shiv Shakti Store in the capacity of an Operational Creditor against Pratham Housing Private Limited as its Corporate Debtor. The transaction leading to the filing of the above petition it is seen that the petitioner is a supplier of TMT bars, electrical fitting and components and that between the period of 07.04.2014 to 23.09.2014, it supplied goods upon receipt of the purchase order and in relation to the said supply raised invoices for the goods supplied. It is further stated that the Operational Creditor had been maintaining a running account against the supply of goods and it also recorded all the transactions as transpired between the parties and as per the ledger account, a balance of ₹ 7,38,910/- is due as on date. De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out that even though it is alleged in the petition that amounts have been paid in cash during the period 15.10.2014 to 30.10.2014, however, from the beginning the transactions have been only through bank as a mode which was adopted to make payments. Even in relation to the banking mode if any payments have been made by the said Mr. Manish Jain the same is contested to that of enabling creation of bogus entries/bills. 4. A rejoinder has been filed by the petitioner in which it is seen that certain documents namely copy of the bill issued by the manufacturer namely Shree Sidhbali Steels Limited, Roorkee Road, Bhopa Bye-Pass, Muzaffarnagar-251001(Uttar Pradesh) as well as Form No. 21 and transport challan has been annexed in addition to sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e son of erstwhile proprietor of the sole proprietary firm, namely Late Mr. Surender Nath Rastogi who had signed as such in the sales tax return forms on which reliance is placed. 6. Thus, a preliminary question is sought to be posed as to the competency of the sole proprietor concern to initiate the proceedings under the provisions of the Insolvency Bankruptcy Code, 2016. In order to address the same, a reference is required to be made to the provisions of Section 9 of the Insolvency and Bankruptcy Code, 2016 enabling an operational creditor to file a petition under IBC, 2016 which reads as follows. 9. (1) After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2016 which is to be following effect: 3 (23) 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; A combined reading of these provisions namely Section 3(23), Section 5(20) read with Section 9 (1) shows that a petition can be preferred by a 'person' and who can be treated as an 'Operational Creditor' to whom an operational debt is owed by the Corporate Debtor and upon issue of notice of payment as provided under Section 8 of IBC, 2016 on default can come before this Tribunal by way of an appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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