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TMI Blog2022 (7) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... t only) as operational debt is due from the Corporate Debtor to the Operational Creditor. The invoices became due and payable from the respective date of issuance. The Operational Creditor is also entitled to interest amounting to Rs. 19,04,930/-, thereby making the total amount due to be Rs. 88,99,158/- (Rupees eighty-eight lakh ninety nine thousand one hundred and fifty-eight only). 4. The Operational Creditor sent a demand notice dated 15 July 2019 under section 8 of the Code. The same was not accepted by the Corporate Debtor and was returned. Thereafter, the demand notice was sent by the Operational Creditor vide email dated 17 August 2019 to the Corporate Debtor's official email address. The Corporate Debtor has not issued any reply to the said demand notice and there are no pre-existing disputes regarding the said operational debt. Submissions on behalf of the Corporate Debtor: 5. The Corporate Debtor submits that no Operational Debt is due and payable on part of the Respondent to the Applicant as per the provisions of the said Code. The corporate debtor is carrying on business of solar, battery, power generation and civil construction and has also executed various pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the parties and the Operational Creditor is well aware that the Govt. of Bihar has still not cleared the bills of the Corporate Debtor. 10. The Corporate Debtor has already taken steps to initiate appropriate action against Govt. of Bihar for recovery of money by impleading the Operational Creditor also as a party, so that immediately upon receipt of the money from the Govt. of Bihar, the Corporate Debtor can release the dues of the Operational Creditor. 11. The present proceeding is not maintainable and/or tenable as the Operational Creditor has agreed that the Operational Creditor is entitled to recover the money from the Corporate Debtor only after the recovery of the dues and/or outstanding from the Govt. of Bihar. The goods were sold and delivered by the Operational Creditor to the Corporate Debtor on the basis of such understanding In any event, the Corporate Debtor has paid a total sum of Rs. 1,60,00,000/- out of Rs. 1,99,04,755/- to the Operational Creditor and hence, the Operational Creditor has paid a substantial amount and has also released payments to the Operational Creditor as and when the Operational Creditor received money from the Govt. of Bihar. 12. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned with the payments pending against its invoices by the Corporate Debtor and is not concerned about any outstanding third-party payments of the Corporate Debtor. 18. It is further submitted that the Operational Creditor cannot delay its payment cycle, waiting for the Corporate Debtor to receive payments from the Govt. The Operational Creditor has entered into a commercial transaction with the Corporate Debtor and the Corporate Debtor ought to abide by the same. 19. It is further submitted that the Corporate Debtor chose not to reply to the Demand Notice issued by the Operational Creditor as the Corporate Debtor had neither paid the outstanding sum nor there existed any dispute regarding the outstanding payment. 20. It is submitted that this Adjudicating Authority has the jurisdiction to decide the present petition, considering the very fact that there exists debtor-creditor relationship between the parties and that the Operational Creditor has furnished all documents evidencing supply of goods to the Corporate Debtor and non-payment against the said goods by the Corporate Debtor. 21. It is further submitted that the terms of payments stipulated in the invoices issued by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Corporate Debtor is untenable. Further, the said contention also makes it clear that there is clearly an amount due from the Corporate Debtor to the Operational Creditor. 26. On perusal of the record, it is seen that the date of default has not been explicitly mentioned in the petition or the demand notice. However, it has been mentioned that the operational debt fell due from the issuance of the invoices. The details of the transactions as provided in the computation table annexed to the petition provide that the first date of default would be 04 December 2018. 27. Further to be noted is that the petition has been filed by the proprietorship itself. In this regard, we would like to hold that under section 2(f) of the Code, the provisions of the Code will also be applicable to proprietorships. Further, it is to be noted that while section 3(23) of the Code does not explicitly cover proprietorship firms, it does so implicitly since the definition of 'person' under section 3(23) is an inclusive one and not exhaustive. 28. While the Corporate Debtor has taken the plea of pre-existing disputes in the reply-affidavit, the Corporate Debtor has not explained the nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Assignment in terms of regulation 7A of the Insolvency and Bankruptcy Board of India (Insolvency Professional) Regulations, 2016 valid upto 28 November 2022. The fee payable to IRP or, as the case may be, the RP shall be compliant with such Regulations, Circulars and Directions as may be issued by the Insolvency & Bankruptcy Board of India (IBBI). The IRP shall carry out her functions as contemplated by sections 15, 17, 18, 19, 20 and 21 of the Code. f. During the CIRP period, the management of the Corporate Debtor shall vest in the IRP or the RP, as the case may be, in terms of section 17 of the IBC. The officers and managers of the Corporate Debtor shall provide all documents in their possession and furnish every information in their knowledge to the IRP within one week from the date of receipt of this Order, in default of which coercive steps will follow. g. The IRP/RP shall submit to this Adjudicating Authority periodical reports with regard to the progress of the CIRP in respect of the Corporate Debtor. h. The Operational Creditor shall deposit a sum of Rs. 3,00,000/- (Rupees three lakh only) with the IRP to meet the expenses arising out of issuing public notice and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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