2022 (1) TMI 458

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....iate Corporate Insolvency Resolution Process (CIRP) against Kavya Build-Con Private Limited ("the Corporate Debtor"), [CIN: U45200MH2004PTC145368]. 2. The Corporate Debtor is a Company incorporated on 29.03.2004 under the Companies Act, 1956, as a Private Company Limited by Shares with the Registrar of Companies, Maharashtra, Mumbai. Its Corporate Identity Number (CIN) is U45200MH2004PTC145368. Its registered office is at 2nd Floor,99 C, Kavya Aura, Sitaram Ghadigaonkar Marg, Tulsiwadi, Tardeo Mumbai, Maharashtra-400034. Therefore, this Bench has Jurisdiction to deal with the present petition. 3. The present Petition was filed by the Operational Creditor before this Adjudicating Authority on the ground that the Corporate Debtor failed....

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.... dishonoured by a return memo dated 18.04.2016 by the Operational Creditor's Bank with remark 'Fund Insufficient'. The copy of the Cheque and the return memo is attached at pp 41 & 42 as Exhibit-3 and Exhibit-4 of the Petition respectively. c) The Corporate Debtor being a partner of the Firm is jointly and severally liable for the payments. The Corporate Debtor has bought the entire right, title and interest of the Operational Creditor in the said Firm for which Cheque was issued. d) Pursuant to the above default, the Operational Creditor filed Insolvency Petition bearing CP (IB) - 480/MB/2018 before this Tribunal which was Dismissed as Infructuous by this Tribunal vide order dated 31.10.2018 as the CIRP was admitted again....

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....r submits that the Operational Creditor seeking the enforcement of the Deed of Retirement dated 31.12.2015 executed between the Partners of M/s. Kavya KCD Developers., who is a Partnership Firm duly registered under the provisions of the Partnership Act, 1936. The Operational Creditor and the Corporate Debtor were the Partners of the said Firm. There is no specific provisions under IBC with respect to the proceedings to be initiated against the Partnership Firm. b) The claim of the Operational Creditor does not fulfil the ingredients of the definition of the "Operational Creditor" as defined under section 5(21) of the Code and hence the Operational Creditor is not entitled under the law to initiate the CIRP against the Corporate De....

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....o as to enable the continuing partners to carry on the business of the Firm. g) As the Operational Creditor did not fulfilled its obligation of executing the relevant documents, the remaining continuing partners were unable to carry on the business. 6. The Operational Creditor issued a Demand Notice in Form 3 dated 06.11.2017 to the Corporate Debtor claiming total outstanding of Rs. 95,75,737/- (Rupees ninety-five lakh seventy-five thousand seven hundred thirty-seven only) together with the interest @ 18% p.a. from 18.04.2016 to 31.10.2017, which is at pp 13-19 of the Petition in terms of section 8 of the IBC. The Corporate Debtor has replied vide letter dated 30.11.2017 to the said Demand Notice denying the Operational Debt. Th....