9911796707
TMI Blog2022 (1) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... ability with the other partners or with the Firm. However, the Bench is of considered view that even the liability of the Corporate Debtor is proved in all aspect, the IBC does not protect the interest or claim of the Partner against another Partner or the Firm. The claim and the cause of action arose on the transaction between the Partners. Therefore, the Petition itself is not maintainable in the eye of law. The Operational Creditor may be liable to the claims against the Corporate Debtor not under the IBC but under the any other law which provides the remedy to the Operational Creditor. The Retired Partner has no right under the IBC to file claim against the Partner or the Firm. This Bench rejects the Application filed by Operation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Creditor is as under: a) The Operational Creditor was a Partner in a Partnership Firm M/s Kavya KCD Developers (Firm) upon the terms and conditions contained in the Deed of Partnership dated 14.12.2010 and also Deed of Partnership for admitting new partner dated 01.08.2015. The Firm approached the Operational Creditor with a proposal whereby the Operational Creditor retire from the Firm and for this purpose it was agreed to execute a Retirement Deed, which was executed on 31.12.2015. As per the said Retirement Deed, the Firm agreed to jointly and severally pay a lumpsum consideration of ₹ 75,00,000/- (Rupees seventy-five lakh only) including the amount standing towards the Operational Creditor s credit in the Books of Accounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018 before the NCLAT wherein the Operational Creditor filed an Intervention Application. As the matter got settled between the parties, the Petition bearing CP (IB) 109/MB/2018 was set aside by the NCLAT vide order dated 21.12.2018 and the Intervening Application was not taken into consideration. f) Aggrieved by the order, the Operational Creditor herein filed a Civil Appeal before the Hon ble Supreme Court of India vide Civil Appeal Dairy No. 3949 of 2019 which has been disposed vide order dated 11.02.2019 wherein the Hon ble Supreme Court granted liberty to the Operational Creditor to file the Petition afresh, which application will be decided on its own merits without being influenced by any observations made in the impugned order a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Operational Creditor and the claim if any could only be initiated against the Firm and not against the Company. The Operational Creditor has filed section 9(3) (b) Affidavit even after denial and dispute raised by the Corporate Debtor for the said the amount. d) The Operational Creditor, the Corporate Debtor, M/s. KCD Infrastructure and Construction Pvt. Ltd. and Mr. Nimish Vora were the Partners of M/s. Kavya KCD Developers registered vide Deed of Partnership dated 14.12.2010 along with the Deed of Partnership for admitting new partners dated 01.08.2015. e) As per the Deed of Retirement dated 31.12.2015, the Operational Creditor sought retirement as agreed mutually, from the firm upon the terms and conditions more particularly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as filed the Affidavit of no dispute under section 9(3)(b) of the Code which is at pp 71-73 of the Petition. The Operational Creditor has also filed the Bank Statement which is at pp 53-65 of the Petition. Findings: 8. We have heard the arguments of Learned Counsel for Operational Creditor and Corporate Debtor and perused the records. 9. After considering the contentions of the Operational Creditor, the question arose can the Retirement amount arising out of the Partnership Firm constitutes the Operational Debt? 10. It is observed by the Bench that the Operational Creditor and the Corporate Debtor were the Partners of the Firm. This Bench is well aware about the relationship between the Partners with its Partnership Firm and als ..... X X X X Extracts X X X X X X X X Extracts X X X X
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