2020 (2) TMI 1442

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....filed Application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (in short 'IBC') in the name of Proprietorship Mr. Ram Niwas Gupta & Sons. When the Application was filed, it is stated that a settlement took place between the Corporate Debtor -M/s. Palm Developers Pvt. Ltd. and the Operational Creditor. The Application was earlier disposed of as withdrawn with liberty granted to the Operational Creditor to seek restoration of the petition in case any of the cheques issued is dishonoured. 2. This happened on 04.06.2019. There is no dispute that later on as postdated cheques were dishonoured, the Operational Creditor filed the Application under Rule 11 of NCLT Rules, 2016 seeking restoration and the Application was res....

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.... of Proprietorship but it was stated that the Proprietorship is through Proprietor and the name of the Proprietor was added. It is also stated that even if it was to be stated that there was any defect same was allowed to be cured by the Adjudicating Authority and thus objection does not survive. 7. Learned Counsel for the Appellant refers to a judgment in the matter of "R.G. Steels Vs. Berry Auto Ancillaries (P) Ltd." passed by National Company Law Tribunal, New Delhi, Court No. III in IB-722/ND/2019 to submit that in that matter when the petition was filed by Sole Proprietorship concern it was not held to be a person and the petition was dismissed. 8. Learned Counsel for the Respondent No. 1 is further submitting that there was prov....

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....at the Petition has been filed by Sole Proprietorship Firm, which is not a legal entity and is not covered under the definition of Person, under Section 3(23) of the IBC, 2016. The Petitioner, in response, has filed an Amended Memo of Parties on 22.01.2020 for curing this technical defect. The same is taken on record." ... 14. Even the judgment shows the name of Respondent No. 1 as the Operational Creditor in his personal name. The Adjudicating Authority in effect has allowed the defects to be cured. The objection on this count does not survive. We also note that Section 2 of IBC provides that the provisions of the Code apply, inter alia, to "proprietorship firms". Further the definition of "person" in Section 3(23) of IBC is in....