2020 (4) TMI 512

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....Bankruptcy (Application to Adjudicating Authority) Rules, 2016 [hereinafter referred to as "the Rules"], as operational creditor/applicant. 2. The applicant/operational creditor is a foreign company within the meaning of section 2(42) of the Companies Act, 2013 dealing in cut and polished diamonds. 3. The respondent/corporate debtor is a partnership firm having identification No. AAE-1168 incorporated in 8-6-2015 and having registered office at LH Road, Surat, Gujarat State. 4. The applicant/operational creditor claimed that it had supplied the materials as specified in the purchase order/s from May 2016 to February 2017 for which various bills/invoices were issued from time to time. That, the material supplied by the operational c....

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.... section 380 of the Companies Act, 2013/Section 592 of the Companies Act, 1956 and, therefore, the applicant foreign company shall not be entitled to bring any suit, claim, any set-off, make any counter-claim or institute any legal proceedings in respect of any contract, dealing or transaction. 8. The respondent has further stated that in para 1 of part IV of the application, the applicant has made reference to purchase order/s, however, there is not a single purchase order provided with the application as the respondent has never placed any order for purchase of the goods with the applicant. Therefore, there is/are no such relation of operational creditor vis a vis corporate debtor. 9. The respondent has further stated that the appli....

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.... section 3(12) of the Insolvency and Bankruptcy Code, 2016. 12. The respondent company has further stated that there has been "dispute" within the meaning of section 5(6) of the Insolvency and Bankruptcy Code, 2016 between the respondent and the applicant. That, the applicant was fully aware about the "existence of the dispute" even before the issuance of the demand notice alleged to be issued by it. That, thus the present matter is covered by section 8(2)(a) read with section 9(5)(ii)(d) of the Insolvency and Bankruptcy Code, 2016. 13. The respondent company has further stated that the applicant has also referred the matter in the form of a complaint against the respondent to Gems and Jewellery Export Promotion Council, Surat, Englis....

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....cords it is also found that the applicant has suppressed the material fact that the respondent has filed a criminal complaint against director/administration of the respondent company on 22-2-2018. 19. Considering the nature of business, the petitioner cannot be considered as operational creditor. As defined under sub-section (20) of section 5 of the I & B Code an "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." In the instant case there is no operational debt owed by the respondent, rather the applicant procures raw diamond and supplies it to the respondent for finishing/polishing and after polishing the same is sent back to the....