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TaxTMI 
TaxTMI 
TaxTMI 
2020 (7) TMI 360
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....f The Insolvency and Bankruptcy Code, 2016 [hereinafter referred to as "the Code"] read with Rule 6 of The Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 [hereinafter referred to as "the Rules"], as operational creditor/applicant. 2. The respondent/corporate debtor is a company registered under the Companies Act, incorporated on 1-1-1943 having identification No.L36990GJ1943PLC000363 and having registered office at Dist. Vadodara, Gujarat State. Authorised share capital of the respondent company is Rs. 25,00,00,000/- and paid up share capital is Rs. 17,12,89,920/-. 3. The applicant/operational creditor is proprietary concern dealing in supply of crane and crane makes. 4. The applicant/operational cred....
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.... B Code (Form 3) on 26th April at the registered office of the corporate debtor which was delivered to the corporate debtor on 04th May, 2018. Despite arranging for a settlement meeting and detailed deliberations, a settlement could not be arrived at between the parties. 8. In support of its claim, the operational creditor has annexed to the application, copy of all relevant documents like copy of invoices, demand notice, affidavit in support of the application, proof of service, computation showing the details of outstanding, ledger account maintained by the operational creditor etc. 9. The respondent/corporate debtor filed affidavit in reply/objections inter alia stating that the invoices based on which the demand notice was issued ....
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....d the balance amount of Rs. 33,99,746/- on 3-9-2010 through the bank against the letter of credit. That, invoice submitted by the operational creditor to the bank is not the invoice placed on record by the operational creditor and the invoice was for the amount Rs. 35,81,148/-. 12. It is further stated by the corporate debtor that the petitioner repeated the same practice in the subsequent transactions also. 13. It is further stated by the corporate debtor that the petitioner has placed reliance on the date of alleged and purported last invoice dated 22-5-2015 to show the date of default as 22-5-2015 since the demand notice is of April, 2018. 14. It is further stated by the corporate debtor that as regards the invoices dated 25-10-....
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....er is not sustainable in the eyes of law, especially when the petitioner has produced copy of corresponding purchase orders against each invoice. More so when the claim against the remaining bills are obviously time barred, it appears that the aforesaid two invoices are fabricated to bridge the gap between the last three bills and to show the date of default as 22-5-2015. 18. On perusal of the records it is also found that the instant petition is filed by one Mr. Sandeep Sukhija in the capacity of C.E.O. (page 12) whereas the same Mr. Sandeep Sukhija has issued a letter of authority dated 28-6-2018 (page 87) authorising Mr. Ritesh R. Mahajan, Practising Company Secretary to file petition before the Adjudicating Authority. 19. Notwiths....
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....n the name of proprietor" 22. Thus, a proprietorship firm is not a legal entity - It is only the proprietor of the firm who is a legal entity and as such the petition should have been filed by the sole proprietor in his name on behalf of his sole proprietorship firm. 23. Section 3 of sub-section (23) speaks about the definition of a person which read as under: - "person" includes; (a) An individual; (b) A Hindu undivided family; (c) A company; (d) A trust; (e) A partnership; (f) A limited liability partnership and (g) Any other entity established under a statute, and includes a person resident outside India 24. On perusal of the definition it is clear that "per....