TaxTMI 
TaxTMI 
2020 (1) TMI 1391
X X X X Extracts X X X X
X X X X Extracts X X X X
....016 [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 20-11-2005 having identification No. U15201GJ1996PLC031162 and having registered office at Ashram Road, Ahmedabad, Gujarat State. Authorised share capital of the respondent company is Rs. 30,00,000/- and paid up share capital is Rs. 28,51,470/- 3. The applicant/operational creditor company is engaged in the business of supply of refined palmolein oil loose and had supplied goods to the respondent from time to time vid....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e ledger copy produced by the petitioner at page No. 25 of the petition. 6. It is further stated by the operational creditor that the respondent company had bought goods amounting to total Rs. 94,45,951/- during the period from 10-4-2018 to 6-8-2018 against which the respondent company had paid total of Rs. 45,04,174/- during the said period. That, the petitioner has taken credit of the amounts received during the said five months as per FIFO method and adjusted the receipt of amounts against the bills raised. Thus, the respondent did not make payment towards total six bills and made payment of half of the first bill. So, practically, the outstanding is towards five and a half bills. 7. It is further stated by the operational creditor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ived the goods, why did the respondent issue cheques towards almost the entire claim amount after filing of the present petition. Further, if it is the case of the respondent that it had not received the goods and if the said defence if believed for a moment then also the question arises that why did the respondent make part payment of the first bill if it had not received the goods. That, even if the defence taken by the respondent that goods towards last five bills were not received by it, still the amount outstanding towards one bill which was partly paid is still more than the prescribed limit of Rs. 1 lac under the I&B Code and for that reason only the present petition is liable to be admitted. 10. The operational creditor has furth....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ional creditor has failed to produce documents satisfying the said Rule 138. 14. As regards the five cheques each of Rs. 10 lacs issued by the corporate debtor in favour of the operational creditor dated 18-12-2019, it is stated by the corporate debtor that the said cheques are signed by the earlier director who has already signed with effect from 9-2-2016. That, after 24-2-2016, the respective bank - Bank of India, Income Tax Char Rasta Branch has not issued any cheques to the corporate debtor in view of the fact that the account of the respondent company was seized by Assistant Sales Tax Commissioner, Ghatak 32, Vijapur and, therefore, prima facie it proves that the five cheques so issued in the year 2013 and the same not of the series....
X X X X Extracts X X X X
X X X X Extracts X X X X
....- "A proprietorship firm has no legal entity like registered firm. A suit cannot be initiated in the name of an unregistered proprietorship firm and the said suit is to be instituted in the name of proprietor". 18. 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. 19. 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 l....