TaxTMI 
TaxTMI 
2021 (2) TMI 823
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....like to mention this fact that the Appellant admit that he filed the present application for the amount which has been settled in Civil Suit No.6912/2016 and on the basis of a consent decree, the said amount became due and for that amount, the present application has been filed. Therefore, we would like to consider this whether decree comes under the definition of Corporate Debt or not. AT this juncture, we would like to quote the following definition of Section 3(10) and the same is quoted below: Creditor "means any person to whom a debt is owed and includes a financial creditor, an 'Operational Creditor', a 'Secured Creditor, an 'Unsecured Creditor' and a 'Decree Holder'. 11. From the perusal of the aforesaid definition, we find that of course definition of creditor includes a 'Financial Creditor', an 'Operational Creditor', 'Secured Creditor', 'Unsecured Creditor' and a 'Decree Holder' but this definition does not shows that the 'Decree Holder' means a 'Financial Creditor' or an 'Operational Creditor'. The words financial creditor and operational creditor are defined under section 5(7) and 5(20) of IBC Code and the same are quoted below: "Financial Creditor" means any pers....
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.... clause; Section 5(21) of IBC, 2016 "Operational Debt" means a claim in respect of the provision of goods or services including employment or a debt in respect of the 6[payment] of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority; 13. If we shall read all the definitions together then we find that the Financial Creditor means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to whereas 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. Since the present application has been filed under Section 9 of the IBC, therefore, we can say that the applicant claimed that on the basis of consent decree an Operational Debt became due but when we shall read the definition of Operational Debt then we find that the decree is not included as an Operational Debt, of course definition of Creditor include decree holder but definition of Operational Creditor does not include decree holder. 14. At this juncture, we would lik....
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....rate Debtor through its purchase orders offered to make payment within a period of 45 to 60 days but the payment was agreed to be made within 30 days from the date of invoices. 5. The Learned Counsel for the Appellant comes out with a plea that the Appellant/Operational Creditor supplied the chemicals/materials to the Respondent/Corporate Debtor through its 'Purchase Orders' against which necessary 'Invoices' were raised. As a matter of fact, copies of 'Invoices' were sent to the Respondent/Corporate Debtor together with chemicals/materials and the same was acknowledged by the Respondent by affixing its 'Rubber Stamp' and signature on the back of the respective Invoices. Added further, the Invoices clearly stipulate that the payment shall be made from the date of Invoice as agreed between the parties. 6. It is the grievance of the Appellant that the Respondent/Corporate Debtor had failed to make the balance payment, which was duly agreed up and therefore, the Appellant/Operational Creditor had approached the Respondent/Corporate Debtor on numerous occasions demanding balance payment. To put it up shortly, there were various communications and visits including but not limited to 2....
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....l for the Appellant forcefully contends that despite to notice having been served upon the Respondent/Corporate Debtor failed to pay the balance amount and also not responded to the notice. Therefore, the Appellant/Operational Creditor was per forced to file the Company Petition before the Adjudicating Authority. 12. The Learned Counsel for the appellant submits that the Respondent/Corporate Debtor was once again served with a 'Notice' together with a 'Paper Book' of the Company Petition in (IB)No.1895/ND/2019 and that the Respondent/Corporate Debtor had appeared and filed its 'Reply' on 26.12.2019. 13. The Learned Counsel for the Appellant takes a stand that during the pendency of the Company Petition, the Respondent/Corporate Debtor deposited with the Appellant/Petitioner numerous cheques as detailed in the 'Reply' but the said cheques were dishonoured, which unerringly points out that the 'Debt' was due, the same being admitted by the Respondent. That apart, the Company Petition was 'Heard' in which the judgement was reserved on 22.1.2020. In reality, during the inter period, viz. 'Reservation Judgement' on 22.1.2020 and passing of the judgement on 8.6.2020, the Respondent/Cor....
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....r a person who had obtained a decree for money against a Company will cease to be a creditor because of that fact, so as to take his case out of creditor, who has instituted a suit and obtained a decree against the Company, will still be a creditor of the Company to whom money is due by the Company. It may be that the original debt had merged in the decree and the person, who was originally a creditor, had become a decree-holder afterwards, but that does not in any way destroy his character as a creditor or the character of the money due to him from the Company as a debt. Thus, the position is that merely because a decree is obtained the creditor does not cease to be a creditor of a Company." 17. The Learned Counsel for the Appellant cites the decision in the Matter of Madhuban Pvt.Ltd. v.Narain Dass Gokal Chand [1971] 41 Comp Cas 685 at 692-693 stated therein as follows (P.692): The learned counsel submitted that it was not necessary in the case of a creditor holding a decree against the company to serve a notice. Specific provision, on the other hand, was made for taking out execution of the decree in such a case, which was not done in this case. The argument, of the learned ....
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....ly. Here, it is important to refer to the judgement of Lord Atkin in Lissenden v. C.A.C.Bosch, Ltd., (1940) 1 All E.R.425, at 436-437, which says: 'The doctrine of election could have no place in the present case. The applicant is not faced with alternative rights. It is the same right that he claims, but in large degree. In Mills v. Duckworth, (1938) 1 All E.R.318, a plaintiff who had been awarded damages for negligence had taken the judgement sum out of a larger sum paid into Court and had then appealed against the quantum of damages, and was met by a similar objection to his appeal. Greer, L.J., in overruling the objection, pointedly said, at p.321: "He (the plaintiff) said: 'I am not going to blow hot and cold. I am going to blow hotter." Here the applicant is not faced with a choice between alternative rights. He has exercised an undisputed right to compensation, and claims to have a right to more. One has not lose one's right to a second helping. It is most respectfully submitted that one has taken the first." When secured creditors like the respondent are driven from pillar to post to recover what is legitimately due to them, in attempting to avail of more than one remedy at....
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....ed 16.8.2018. 24. Besides the above, Rs. 1,35,000/- (Rupees One lakh Thirty Five Thousand only) towards Penalty of Rs. 5,000/- (Rupees Five Thousand only) per instalment per month as per 'Undertaking' given by the Corporate Debtor (Respondent) and recorded as per order dated 25.10.2018 by the Learned Additional District Judge, Saket Court, New Delhi in Civil Suit No.6912 of 2016 in the case of Ashok Agarwal(Appellant) V. Amitex Polymers Pvt.Ltd and Anr.(First Respondent/Corporate Debtor). In fact, the total dues were mentioned as Rs. 8,85,000/- (Rupees Eight Lakhs Eighty Five Thousand only). 25. The real grievance of the appellant is that the aforesaid Debt sum is payable, as admitted by the Respondent/Corporate Debtor and as recorded in its 'Undertaking' and 'Consent Decree' passed by the Learned Additional District Judge, Saket Court, New Delhi dated 25.10.2018, as per 'Settlement Agreement' executed on 16.8.2018 between the Operational Creditor and Operational Debtor. 26. Before the 'Adjudicating Authority', the Respondent/Corporate Debtor took a stand that the Company Petition filed by the Appellant/Petitioner was not maintainable and the same was to be dismissed in view of ....
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....so showed the name of the Directors of the Corporate Debtor Company (Respondent) but in the master data, email ID of the Director was not given rather one e-mail ID of which the Applicant(Appellant) claimed to send the demand notice was given . But from perusal of the same, it cannot be said that this e-mail ID is one of the persons as required under Rule 5(2) of the Adjudicating Authority Rule. In fact, the Adjudicating Authority in the impugned order opined that the email ID on which the Applicant(Appellant) had delivered the demand notice was neither of a whole time Director or Designated Partner or Managerial Director, Corporate Debtor and held that the demand notice as required under section 8(1) of Insolvency and Bankruptcy Code was not delivered etc. 31. In regard to the plea taken on behalf of the Respondent/Corporate Debtor before the Adjudicating Authority that notice was served on the Company's official e-mail ID at its registered office, it is to be pointed out that a Company, a juristic entity cannot be served personally and if the registered office of a company is locked/closed, then if no one on behalf of the Company had received the notice(s), then the Appellant/Pe....
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....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 president outside India; Section 5(20) of The Insolvency and Bankruptcy Code 2016 defines an 'Operational Creditor' meaning a person to whom an Operational debt is owed and includes any person to whom such debt has been legally assigned or transferred. Section 5(21) of The Insolvency and Bankruptcy Code 2016 pertains to an 'Operational Debt' meaning a claim in respect of the provision of goods or services including employment or a debt in respect of the [payment] of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any legal authority. Section 5(7) of The Insolvency and Bankruptcy Code 2016 deals with Financial Creditor means any person to whom a financial debt is owed and includes a person to whom such has been legally assigned or transferred to. 37. It is significant to point out that Section 9(3)(c) of the Code is a procedural provision, which is directory in the nature, seen in the light of 'Adjudicating Authority' Rules read with Cod....
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.... 'Individual' as per Section 3(23) inclusive definition of The Insolvency and Bankruptcy Code 2016, in the considered opinion of this Court. As such, the Appellant is not incompetent in his 'Individual' capacity as proprietor of M/s Shree Marketing, New Delhi. 42. This Tribunal aptly points out the decision in Punjab National Bank Dharamshala V. Premsagar Chaudhary and others reported in AIR 1996 Himachal Pradesh at P 86, wherein it is observed and held that it can be safely inferred that in terms of compromise, the 'Judgement Debtor'/was to make payment of those it can be presumed that there is a subsequent order directing the payment of money is embodied in terms of compromise and thus, the execution is well within time. It may not be out of place to clarify here that as per terms of compromise, the 'Joint Debtor'- 3rd objector, was to pay Rs. 30,000/- which in fact actually paid and was to further keeping on paying Rs. 3,000/- p.m commencing from 7.3.1989 and the starting point of limitation would be when the default committed in the payment of such payment in terms of compromise. 43. Considering the fact that the Appellant/Operational Creditor in the Company petition in IB 18....