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TMI Blog2022 (1) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... ss (CIRP) against Kavya Build-Con Private Limited ("the Corporate Debtor"), [CIN: U45200MH2004PTC145368]. 2. The Corporate Debtor is a Company incorporated on 29.03.2004 under the Companies Act, 1956, as a Private Company Limited by Shares with the Registrar of Companies, Maharashtra, Mumbai. Its Corporate Identity Number (CIN) is U45200MH2004PTC145368. Its registered office is at 2nd Floor,99 C, Kavya Aura, Sitaram Ghadigaonkar Marg, Tulsiwadi, Tardeo Mumbai, Maharashtra-400034. Therefore, this Bench has Jurisdiction to deal with the present petition. 3. The present Petition was filed by the Operational Creditor before this Adjudicating Authority on the ground that the Corporate Debtor failed to make payment of a total sum of Rs. 75,00,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Creditor's Bank with remark 'Fund Insufficient'. The copy of the Cheque and the return memo is attached at pp 41 & 42 as Exhibit-3 and Exhibit-4 of the Petition respectively. c) The Corporate Debtor being a partner of the Firm is jointly and severally liable for the payments. The Corporate Debtor has bought the entire right, title and interest of the Operational Creditor in the said Firm for which Cheque was issued. d) Pursuant to the above default, the Operational Creditor filed Insolvency Petition bearing CP (IB) - 480/MB/2018 before this Tribunal which was Dismissed as Infructuous by this Tribunal vide order dated 31.10.2018 as the CIRP was admitted against Corporate Debtor in another Company Petition bearing CP (IB) NO. 109/MB/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.2015 executed between the Partners of M/s. Kavya KCD Developers., who is a Partnership Firm duly registered under the provisions of the Partnership Act, 1936. The Operational Creditor and the Corporate Debtor were the Partners of the said Firm. There is no specific provisions under IBC with respect to the proceedings to be initiated against the Partnership Firm. b) The claim of the Operational Creditor does not fulfil the ingredients of the definition of the "Operational Creditor" as defined under section 5(21) of the Code and hence the Operational Creditor is not entitled under the law to initiate the CIRP against the Corporate Debtor. c) The Company vide its letter dated 30.11.2017 which is the reply to the Demand Notice dated 06.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligation of executing the relevant documents, the remaining continuing partners were unable to carry on the business. 6. The Operational Creditor issued a Demand Notice in Form 3 dated 06.11.2017 to the Corporate Debtor claiming total outstanding of Rs. 95,75,737/- (Rupees ninety-five lakh seventy-five thousand seven hundred thirty-seven only) together with the interest @ 18% p.a. from 18.04.2016 to 31.10.2017, which is at pp 13-19 of the Petition in terms of section 8 of the IBC. The Corporate Debtor has replied vide letter dated 30.11.2017 to the said Demand Notice denying the Operational Debt. The said reply is attached at pp 20-23 of the Petition. The Operational Creditor again sent the re-joinder vide its letter dated 24.01.2018 to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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. 12. For supporting the above view, this Bench relied upon the NCLAT Judgment in Gammon India Ltd V. Neelkanth Mansions and Infrastructure Pvt. Ltd. (2018 SCC OnLine NCLAT 994) at para 11 wherein it was held that: "It is not dispute that the amount due to the Applicant is from 'Gammon Neelkanth Realty Corporation'. The bill was raised against the said Partnership firm namely- 'Gammon Neelkanth Realty Corporation'. 'Neelkanth Realtors Pvt. Ltd.', 'Gammon Housing and Estates Developers Ltd.' And 'Neelkanth Mansions and Infrastructure Pvt. Ltd.' Are the partners, therefore, even if one of the part ..... X X X X Extracts X X X X X X X X Extracts X X X X
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