TaxTMI 
TaxTMI 
2021 (2) TMI 1094
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....roprietor of M/s. Mateshwari Minerals. However, we are not standing on such technicality. 2. The Appeal has been filed against the Impugned Order dated 28th February, 2020 passed in C.P. (I.B) No.518/NCLT/AHM/2019 by the Adjudicating Authority (National Company Law Tribunal, Ahmedabad Bench, Ahmedabad Court - II). By the said Impugned Order, the Adjudicating Authority dismissed the Application filed by the Appellant under Section 9 of Insolvency and Bankruptcy Code, 2016 (IBC - in short) on the sole technical ground that the Application filed was in the name of M/s. Mateshwari Minerals, a Proprietorship and as it was filed in the name of M/s. Mateshwari Minerals, the Adjudicating Authority held that it was not a legal entity and thus held ....
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....iraj Advertising Corporation vs. Vishaka Engineering 115 (2004) DLT 471 it is held that "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 it to be instituted in the name of proprietor" 11. 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. 12. 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; ....
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.... Counsel for the Appellant is submitting that the definition of a "person" in Section 3(23) of IBC is inclusive definition and thus the Adjudicating Authority should not have held that the Appellant is not included in the definition. 6. Counsel referred to the Application (Annexure - B - Page 32) to submit that the same was filed by the Appellant in his own name as Mr. Piyush Bangar, sole proprietor of M/s. Mateshwari Minerals. He, however, showed name of the firm "M/s. Mateshwari Minerals Proprietorship Firm" as the name of Operational Creditor in the column of Part - 1 of the Format. The learned Counsel for the Appellant states that thus it should not have been held that there is defect in filing. The Appellant then relies on Judgement o....
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....SC in the name of M/s. Bhagwati Vanaspati Traders, could have easily been corrected by substituting the name of M/s. Bhagwati Vanaspati Traders with that of B.K. Garg. For, in a sole proprietorship concern an individual uses a fictional trade name, in place of his own name. The rigidity adopted by the authorities is clearly ununderstandable." Further reliance is placed on Judgement in the matter of "Doshi Brothers vs. State of Mah." reported as 2020 (1) Maharashtra Law Journal where also the Hon'ble High Court of Bombay has held (in para - 36) that such defect is curable. 8. The Counsel relied on Section 9(5) (Proviso) of IBC to state that the Adjudicating Authority should not have rejected the Application and if it was of the opinion th....