TaxTMI 
TaxTMI 
2022 (3) TMI 279
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....Proprietorship Concern, (hereinafter "applicant"), with a prayer to initiate the Corporate Insolvency Resolution Process against M/s. Nikhil Footwears Pvt. Ltd. (hereinafter, Respondent/Corporate Debtor). 2. As per averments made in the petition, The Operational Creditor is a sole proprietorship concern. The Operational Creditor is engaged in the business of services, trading and supplying of construction material. 3. The trade between the Operational Creditor and Corporate Debtor commenced from year 2017 with respect to the supply of the raw materials. All the goods supplied by the Operational Creditor were duly received by the Corporate Debtor without any dissatisfaction with respect to quantity and quality of the goods supplied. ....
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....finition of a "person" is not entitled to approach the Adjudicating Authority. c) Corporate Debtor also stated that in the instant case the demand notice of the Operational Creditor has been issued in the name of the 'Nikhil Footwears Pvt. Ltd.', however, the amount claimed as per the invoices is from the different entity i.e. 'Nikhil Footwears'. d) It is further submitted that the Operational Creditor had not furnished any proof of serving a copy of demand notice. 7. The petitioner has filed rejoinder to the reply of respondent and submitted as follows: a) It is submitted that the present petition is filed through authorized representative of Mr. Kapil Kumar Bansal proprietor of M/s. Krishna In....
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....s his arguments, the Learned Counsel relied upon citation RG Steels Vs. Berrys Auto Ancillaries (P) Ltd., MANU/NC/6782/2019. 11. On the other hand, Learned Counsel for the petitioner argued that the present citation has been overruled, thus, the sole proprietor can maintain the petitioner under Section 9 being Operational Creditor and also referred to definition 2(f) of the Code, whereby it is being said that the IBC Code is applicable to the sole proprietorship as well also Section 3(23) of the Code has to be read in consonance with 2(f) of the Code. Accordingly, prayed that the petition is well maintained. 12. Although, Section 5(21) "Operational Creditor" refers to a person to whom an operational debt is owed and includes any perso....
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....f the person or individual. Further, Section 2(f) clearly laid down that the provisions of this Code are applicable to sole proprietorship firm also. Hence, Section 2(f) has to be read along with Section 3(23) of the Code. Section 2 (f) of IBC provides inter alia that the provision of the code are applicable to partnership firm and proprietorship firm. 16. Apart that it is settled law that the "doctrine of harmonious construction" has to be adopted because the Parliament makes a separate set of statute rules and regulations as well as Constitution of Provision under their well-defined power. While framing of these provisions, it has to be done very carefully, conflict still occurs sometimes due to overlapping in the provisions of acts. T....
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....3) though, the word "sole proprietor" exclusively had not been mentioned, but at the last i.e. Section 3(23) (g) lays down in other entity established under statute. The sole proprietorship also entails various acts which are established by the Government of India and sole proprietorship requires registration under the various acts and regulations of the Government of India. 19. "Operational Creditor" refers to a word "person" and the definition of "person" is laid down under Section 3(23) of the Code, which does not include sole proprietorship concern specifically, but that Section 3(23) as to be read in consonance of Section 2(f) to draw a harmonious construction among all these sections.. All these sections has to be taken into consid....
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.... matter of Neeta Saha (supra), accordingly, the citation i.e. D G Steels Pvt. Ltd. (Supra) referred on behalf of the respondent is not helpful to the Corporate Debtor. Hence, the contention raised by the Learned Counsel for the respondent stands discarded and it is held that the "sole proprietorship firm" is entitled to maintain the petition under Section 9 of the Code being "Operational Creditor" before NCLT. Consequently, this Point No. I stands decided accordingly in the favour of the petitioner against the respondent. POINT NO. II: 22. Now, it has to be seen whether the present petitioner actually owes dues against the present Corporate Debtor against the goods were supplied.. In this context, it is to be mentioned that all the in....