2018 (8) TMI 1559

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....kruptcy Code, 2016 (for brevity 'the code') read with rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity 'the rule') for initiation of Corporate Insolvency process in respect of the Corporate Debtor. 2. The corporate debtor is a company incorporated under the provisions of The Companies Act, 1956. 3. It is the case of the applicant that on 11.09.2008 he booked a shop bearing No. G-24, having 1079 square feet area at ground floor in the 'Capital City Shopping Mall' being developed by the Corporate Debtor Company and paid a sum of Rs. 5,00,000/- [Rupees Five Lakhs Only] on 11.09.2008. On receipt of the payment, the Corporate Debtor Company also issued an allotment letter dated 11.09.....

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....two parties, the Corporate Debtor immediately paid a sum of Rs. 15,00,000/- [Rupees Fifteen Lakhs only] vide Cheque No. 445884 of dated 20.05.2015 against total commitment of Rs. 1,81,26,500/- as noted in this letter. 9. The applicant further on 14.07.2015, 23.07.2015 & 07.11.2015 received a sum of Rs. 45,00,000/- [Rupees Forty-Five Lakhs only] through three (3) different cheques which were deposited and cleared and received in bank account, on 14.07.2015, 23.07.2015 and 07.11.2015. 10. Due to non-payment of remaining amount the applicant, issued a demand notice vide letter dated 27.04.2016 demanding the payment of Rs. 1,21,26,500/-. 11. The applicant again sent another reminder demanding issued demand notice u/s. 271 of the Compan....

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....t of the unpaid operational debt. An application under Section 9 of the Code can be filed only by an 'Operational Creditor' in respect of the operational debt. Therefore, a perusal of Section 9 of the Code would show that in order to maintain an application as an 'Operational Creditor' the applicant has to satisfy the requirements of Section 5(20) and (21) of the Code. 16. The aforesaid expressions have been defined in section 5(20) & (21) of the Code respectively which envisages that: "5. In this Part, unless the context otherwise requires,- (20) "Operational creditor" means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred, (21) "op....

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....t claim of the applicant cannot be considered as an 'operational debt' under the Code. 18. The next question is whether the Petitioner could be regarded as an 'Operational Creditor' within the meaning of section 5(20). The 'Operational Creditors' are those persons to whom the 'Operational Debt' is owed and whose liability from the entity comes from a transaction on operations. The applicant in the present case had advanced money towards booking of a shop and admittedly has neither supplied any goods nor has rendered any service etc. as defined in section 5(21) of the Code and as such his claim does not fall within the purview of operational debt, he cannot acquire the status of an 'Operational Creditor'. 19. According to section 9(1) ....