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TMI Blog2022 (7) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... ditor and there is no harm if a person files a petition in his own name and addresses himself to be proprietor of his trade name. After all a person has a right to address himself as the proprietor of a proprietorship firm. The contention of the Corporate Debtor is misplaced and cannot be accepted - The Corporate Debtor had infact affirmed the outstanding due vide email and payments certificate dated January 10, 2019. Once an acknowledgment is made for a job having been satisfactorily done, the amount becomes due to the vendor/ the Operational Creditor. The Corporate Debtor in this matter cannot escape the liability simply by beating about amount the bush and taking refuge under one or other clause of the agreement or seeking refuge under any notification that a default has taken place during the period, for which no petition could be filed in the present matter, the facts are quite different. If the Corporate Debtor had any valid defence, it could have been stated so in its reply to notice under section 8 or in reply to even the corrigendum issued by the Operational Creditor, and even if it could not be done, it could have filed its reply to the petition. Even that has not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said work as per the terms and conditions laid down in the agreement with full satisfaction of the Corporate Debtor and the same was confirmed, admitted and acknowledged by the Corporate Debtor. It is submitted that when the Operational Creditor made demand of their bills pursuant to the said agreement, the Corporate Debtor failed to make payment of the bill and the dues of Rs.1,47,74,691/- as on March 31, 2020 are still due and payable by the Corporate Debtor against the said work contract. It is submitted that on January 10, 2019,the Corporate Debtor acknowledged the outstanding dues vide its email and payment certificate dated January 10, 2019. Thereafter, number of reminders and various correspondences were made by the Operational Debtor vide demand notice dated 18.03.2020 and 06.07.2020 the receipt of which has been acknowledged by the Corporate Debtor but till date no payment has been made. It is submitted that on 16th October, 2020, the Corporate Debtor paid Rs. 10,00,000/- and subsequently on 15.01.2021 after receipt of the aforesaid Demand Notice under section 8 of the IB Code, 2016, the Corporate Debtor paid Rs. 10,00,000/- out of the total outstanding dues. 5. Af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lace. The matter was finally heard on 13th May,2022. 12. Ld. Counsel for the parties was heard at length. The Operational Creditor on the one hand submitted that the work was completed without any delay and the remaining amount has been acknowledged by the Corporate Debtor but on the other hand Ld. Counsel for the corporate debtor raised various grounds referring to various clauses of the agreement and sought to bring this matter under the purview of Section 10 A of the Code stating that the Operational Creditor has claimed in part IV that The total sum due is Rs.1,27,74,691/- as on March 31, 2020. In this connection, the dues of Rs. 1,47,74,691/- as on March 31, 2020 arising out of the Corporate Debtor in confirmation and commitment started to repay in different instalments to the Operational Creditor a total sum of Rs. 1,27,74,691/- as on March 31, 2020 . 13. It is submitted that no application for institution of CIRP could be instituted for any default arising on or after 25th March, 2020 and admittedly the pleadings state about March,31 2020 as the date of default. 14. It is submitted that the Operational Creditor at all material point of time in his petition as we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proprietor alone will have to sue though he may do so as the sole proprietor of the proprietorship concern. It is submitted that the proprietorship firm does not have any legal existence neither a corporate entity nor an individual person. 20. It is submitted by the Ld. Counsel for the Corporate Debtor that the section 8 notice is very important to initiate corporate insolvency process and the same has been sent by the proprietary concern as the Operational Creditor and not by the proprietor. 21. It is submitted that the Operational Creditor has relied upon a Project Completion Agreement which has allegedly been executed on December 19, 2018.However, the same is an unsigned document, which only bears the signature of the Operational Creditor not of the Corporate Debtor. It is submitted that the said agreement has been executed by proprietorship firm and not by the proprietor being namely, Mangilal Suthar. 22. It is submitted that the email at page 25 has been issued on January 10, 2019 by one MRC Prism Project Pvt. Ltd. and not by the Corporate Debtor as alleged. It is submitted that the Contract dated September5, 2016 at Claus 55 states that Certificate of Completion o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name and addresses himself to be proprietor of his trade name. After all a person has a right to address himself as the proprietor of a proprietorship firm. The contention of the Corporate Debtor is misplaced and cannot be accepted. The debt of Rs.1,47,74,691/- had become due and payable under the agreement /contract being No. GIIPL/Seg- A/MA/Extn/52/415 dated 05/09/2016 and 09/02/2017 respectively, pursuant to which several interior work orders were issued by the Corporate Debtor, out of which Rs.20,00,000/- had been paid as stated above thereby leaving a balance of Rs.1,27,74,691/-.The Corporate Debtor had infact affirmed the outstanding due vide email and payments certificate dated January 10, 2019. Once an acknowledgment is made for a job having been satisfactorily done, the amount becomes due to the vendor/ the Operational Creditor. The Corporate Debtor in this matter cannot escape the liability simply by beating about amount the bush and taking refuge under one or other clause of the agreement or seeking refuge under any notification that a default has taken place during the period, for which no petition could be filed in the present matter, the facts are quite different. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er or lessor where such property is occupied by or in the possession of the corporate debtor. v) The supply of essential goods or services rendered to the corporate debtor as may be specified shall not be terminated, suspended, or interrupted during the moratorium period. vi) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. vii) The order of moratorium shall have effect from the date of admission till the completion of the corporate insolvency resolution process. viii) Provided that where at any time during the Corporate Insolvency Resolution Process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of the corporate debtor under Section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. ix) The Operational Creditor has not proposed name of any Insolvency Resolution Professional. Therefore, as per the provisions of Section 16(3) (a) of the IBC, so, we appoint Mr. Sanjeev Jhunjhunwala, IRP having R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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