TaxTMI 
TaxTMI 
TaxTMI 
2022 (7) TMI 614
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....t Bengal, 713216, (hereinafter referred as the Corporate Debtor). 3. It is submitted in the petition that the Operational Creditor is interior work contractor and designer and carries on business at Kolkata. The Corporate Debtor is a company within the meaning of the Companies Act, 1956. It is submitted that the corporate debtor is building contractor and deals in constructions work in the State of West Bengal and different parts of India has been carrying on business with the Operational Creditor since long time. 4. It is submitted that during the period of 2016-17, the Operational Creditor and the Corporate Debtor entered into an agreement/contract being No. GIIPL/Seg-A/MA/Extn/52/415 dated 05/09/2016 and 09/02/2017 respectively in respect of which several interior work orders were issued by the Corporate Debtor to the Operational Creditor for interior work. Pursuant to which, the Operational Creditor completed the said work as per the terms and conditions laid down in the agreement with full satisfaction of the Corporate Debtor and the same was confirmed, admitted and acknowledged by the Corporate Debtor. It is submitted that when the Operational Creditor made demand of their ....
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....um were duly served to the Corporate Debtor as per the Track Consignment Report, but the Corporate Debtor choose not to reply to the said notice. 10. The Operational Creditor has also filed statement of accounts in the ICICI Bank to indicate the part payments received by it from the Corporate Debtor and also to indicate that no payment has been received thereafter and the said amount outstanding operational debt of Rs.1,27,74,691/- still remains due and payable by the Corporate Debtor. 11. It is submitted that when the notice of this petition was given to the Corporate Debtor, the Corporate Debtor did not file any reply to the petition in spite of various opportunities granted to the Corporate Debtor to file reply affidavit. On 16th March, 2022 both the parties were present through their counsel and submitted that the matter was likely to be settled but since no settlement between the parties took place. The matter was finally heard on 13th May,2022. 12. Ld. Counsel for the parties was heard at length. The Operational Creditor on the one hand submitted that the work was completed without any delay and the remaining amount has been acknowledged by the Corporate Debtor but on the ....
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....ility towards the Operational Creditor 17. Ld. Counsel for the Corporate Debtor submitted that section 3(12) of the Code defines default as under: "default" means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not repaid by the debtor or the corporate debtor, as the case may be". 18. It is submitted that the date of default ought to be considered from the date of non-payment of debt when whole or any part of, amount of debt has become due and payable and is not repaid by the debtor from the Corporate debtor. It is submitted that according to the notice, the default arose due to acknowledgement by the Corporate Debtor and not due to default actually occurring. 19. It is submitted that notice has been issued by the proprietorship firm being the M.Arts, not by the Proprietor and in case of a proprietorship firm where the proprietor alone will have to sue though he may do so as the sole proprietor of the proprietorship concern. It is submitted that the proprietorship firm does not have any legal existence neither a corporate entity nor an individual person. 20. It is submitted by the Ld. Counsel for the Corporate ....
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....s granted to the Corporate Debtor to file reply within two weeks and when the matter was listed on 16th March , 2020, the Corporate Debtor sought time for entering into a settlement, the matter was adjourned to 25th April, 2022 and thereafter on 13th May,2022 when the matter was finally heard and reserved for orders in the absence of any reply affidavit filed by the Corporate Debtor 27. The contention of the Corporate Debtor that the petition has been filed by the proprietorship concern or the notice has been sent on behalf of the proprietorship concern is misplaced and cannot be accepted. The petition and the affidavit clearly named Mangilal Suthar as the Operational Creditor and the next line is part of his address i.e. proprietor of M. Arts. M.Arts is only the trade name /address of the Operational Creditor and there is no harm if a person files a petition in his own name and addresses himself to be proprietor of his trade name. After all a person has a right to address himself as the proprietor of a proprietorship firm. The contention of the Corporate Debtor is misplaced and cannot be accepted. The debt of Rs.1,47,74,691/- had become due and payable under the agreement /contra....
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....f Insolvency & Bankruptcy Code, 2016 shall be made immediately. iv) Moratorium under Section 14 of the Insolvency & Bankruptcy Code, 2016 prohibits the following: a) The institution of suits or continuation of pending suits or proceedings against the Corporate Debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; b) Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; c) Any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); d) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. v) The supply of essential goods or services rendered to the corporate debtor as may be specified shall not be terminated, suspended, or interrupted during the moratorium period. vi) The provisions of sub-section (1) shall not apply to s....