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TMI Blog2022 (3) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... ause the Parliament makes a separate set of statute rules and regulations as well as Constitution of Provision under their well-defined power. While framing of these provisions, it has to be done very carefully, conflict still occurs sometimes due to overlapping in the provisions of acts. The rule of interpretation is the doctrine of harmonious construction which laid down when there is a conflict between two or more statute or two or more parts of statute and the rule of harmonious construction need to be adopted. Every statute has a purpose and intent as per law and should be read as a whole. While using the harmonious rule, the interpretation should be consistent with all the provisions of the statute - Operational Creditor refers to a word person and the definition of person is laid down under Section 3(23) of the Code, which does not include sole proprietorship concern specifically, but that Section 3(23) as to be read in consonance of Section 2(f) to draw a harmonious construction among all these sections. The sole proprietorship firm is entitled to maintain the petition under Section 9 of the Code being Operational Creditor before NCLT - the issue is decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Insolvency Resolution Process against M/s. Nikhil Footwears Pvt. Ltd. (hereinafter, Respondent/Corporate Debtor). 2. As per averments made in the petition, The Operational Creditor is a sole proprietorship concern. The Operational Creditor is engaged in the business of services, trading and supplying of construction material. 3. The trade between the Operational Creditor and Corporate Debtor commenced from year 2017 with respect to the supply of the raw materials. All the goods supplied by the Operational Creditor were duly received by the Corporate Debtor without any dissatisfaction with respect to quantity and quality of the goods supplied. 4. The applicant issued Demand Notice dated 31.12.2019 in terms of section 8 of the Code to corporate debtor which was served through speed post. 5. As per part IV of the application, ₹ 3,33,86,135/- alongwith interest is still pending to paid by Corporate Debtor since 25.10.2017 to 27.09.2019. 6. Upon issuance of notice, Ld. Counsel for the respondent appeared and filed reply to the present petition raising the following objections against the admission of the present petition: a) It is alleged that the said petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of the rival arguments, the following points of determination has arisen: I. Whether the present petitioner being sole proprietor is entitled to maintain the present petition as Operational Creditor? II. Whether the present petitioner is entitled to initiate CIRP proceedings against the respondent on the basis that the respondent owed debt for the goods supplied by the petitioner? III. Relief. FINDINGS WITH REASONS POINT NO. I 10. Learned Counsel for the respondent vehemently contended that the present petition has been filed by the sole proprietor concern, accordingly, the same is not maintainable as the same does not come under the purview of definition of person and could not be treated as Operational Creditor. In order to buttress his arguments, the Learned Counsel relied upon citation RG Steels Vs. Berrys Auto Ancillaries (P) Ltd., MANU/NC/6782/2019. 11. On the other hand, Learned Counsel for the petitioner argued that the present citation has been overruled, thus, the sole proprietor can maintain the petitioner under Section 9 being Operational Creditor and also referred to definition 2(f) of the Code, whereby it is being said that the IBC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions, it has to be done very carefully, conflict still occurs sometimes due to overlapping in the provisions of acts. This is because of that there are chances of certain gaps being left while framing of these provisions, which could not have been foreseen by the legislature. To deal such conflict, certain doctrine and rules are propounded by the Court that is used in the interpretation of statute. One such rule of interpretation is the doctrine of harmonious construction which laid down when there is a conflict between two or more statute or two or more parts of statute and the rule of harmonious construction need to be adopted. Every statute has a purpose and intent as per law and should be read as a whole. While using the harmonious rule, the interpretation should be consistent with all the provisions of the statute. 17. In this regard, the reference can be made to citation Union of India Vs. Dalip Kumar Singh, CIVIL APPEAL NOS. 2466-2467 OF 2015, decided on 26, February 2015., wherein it is laid down, The provision of statute must be read harmonious together, where this is not possible and there is reconcilable conflict between two section, it must be determined which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred on the part of the respondent has also been over-ruled by the Hon'ble NCLAT in the matter of Neha Saha supra. Hence, the present petitioner is entitled to file the present petition on behalf of sole proprietorship concerned. This proposition stands settled in the matter of Neeta Saha (supra), accordingly, the citation i.e. D G Steels Pvt. Ltd. (Supra) referred on behalf of the respondent is not helpful to the Corporate Debtor. Hence, the contention raised by the Learned Counsel for the respondent stands discarded and it is held that the sole proprietorship firm is entitled to maintain the petition under Section 9 of the Code being Operational Creditor before NCLT. Consequently, this Point No. I stands decided accordingly in the favour of the petitioner against the respondent. POINT NO. II: 22. Now, it has to be seen whether the present petitioner actually owes dues against the present Corporate Debtor against the goods were supplied.. In this context, it is to be mentioned that all the invoices placed on record pertains to M/s. Nikhil Footwear. Both the entities are having different GSTIN/UIN PAN Numbers. As the GSTIN/UIN number of M/s. Nikhil Footwear Privat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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