AI Drafter 
TaxTMI 
TaxTMI 
2022 (8) TMI 709
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....half of the Financial Creditor: 3.1 The case of the Financial Creditor is that the Financial Creditor, disbursed an amount of Rs. 20,00,000/- to the Corporate Debtor, as a loan in two tranches. The first tranche of disbursement was of an amount of Rs. 13,00,000/- by way of a cheque on 14/09/2009. The second tranche was for an amount of Rs. 7,00,000/- by way of a cheque on 31/03/2010. A copy of the of the Financial Creditor's bank statements evidencing the abovementioned disbursals is annexed to the petition as Annexure 'B'. 3.2 The said loan was disbursed to the Corporate Debtor on account of the proprietorship business carried on by the Corporate Debtor in the name and style of The Mining & Engineering Corporation. The fact that the Corporate Debtor is the proprietor of the said concern will appear, inter alia, from the financial statement of the Corporate Debtor filed with ROC for FY2017-18, a copy whereof is collectively annexed to the petition and marked with letter "C". 3.3 It was agreed and understood between the parties that the aforesaid loan amounts would be repayable by the Corporate Debtor on demand made by the Financial Creditor an....
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....icant. 5. Part II of the petition contains the details of the Corporate Debtor. 6. Part III of the petition provides the particulars of the proposed Interim resolution Professional. 7. Part-IV contains particulars of Financial Debt. In item 2 of this part the amount claimed to be in default is mentioned. 8. Part-V contains the particulars of financial debt. 9. Submissions on behalf of the Corporate Debtor: 9.1 The Corporate Debtor has submitted that there is no privity of contract between the Financial Creditor and M/s. Vindhya Industries Pvt. Ltd. The amount of Rs. 20,00,000/- was disbursed by the Financial Creditor to M/s. The. Mining and Engineering Corporation, which is a sole proprietorship firm and not to the Corporate Debtor. Such disbursement to the M/s. The Mining and Engineering Corporation will be evident from page 16 of the said application. As such the aforementioned debt is due from the said M/s. The. Mining and Engineering Corporation to the Financial Creditor, and not from the Corporate Debtor herein. 9.2 Further, no interest has ever been paid by the Corporate Debtor to the Financial Creditor till date and, as such, this instant app....
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....h is not permissible under IBC, 2016. The purported Corporate Debtor herein has craved for leave to file an appropriate application under Section 65 of the IBC, 2016 against the Financial Creditor for maliciously filing the instant application under Section 7 of the IBC, 2016 without having any intention to initiate Corporate Insolvency Resolution Process. 9.8 There is no financial debt due from the Corporate Creditor and, as such, there is no default and this instant application is liable to be dismissed at the very threshold. 9.9 The Financial Creditor along with her family members, namely, Sri Maganlal Daga, who was the father of the Financial Creditor along with Sri Jagmohan Daga and Rajesh Kumar Daga, had made an investment in M/s. The Mining and Engineering Corporation in the year 2005 for the purpose of executing the project floated by Reliance Communications Ltd. and its subsidiaries. Thereafter a family arrangement was arrived at and pursuant to the family arrangement, all the family members including the Financial Creditor had made investments in M/s. The Mining and Engineering Corporation to successfully execute the project floated by Reliance Communica....
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....le indicating part payment made to, the applicant/Financial Creditor. No payment whatsoever has ever been made by the Corporate Debtor to the Financial Creditor, which explicitly proves the fact that there is no privity of contract between the purported Corporate Debtor and Financial Creditor. The Financial Creditor is strictly called upon to prove that payments have been made by the Corporate Debtor to the Financial Creditor. 9.14 It is now a well settled proposition of law that the proceedings under section 7 and 9 of the Code are not recovery proceedings, but a tool to resolve insolvency of Corporate Debtor. In the instant matter, the Corporate Debtor is a solvent and profit making company having no creditors. The same will be reflected from the balance sheets of the Corporate Debtor, a copy whereof is annexed to the Reply-Affidavit as Annexure "D". 10. Rejoinder on behalf of the Financial Creditor: 10.1. It has been submitted that the allegations made in the affidavit are baseless and contradictory. The corporate debtor has also resorted to fraudulent fabrication and forgery of documents in an attempt to avoid repayment to the applicant. 10.2. Bimal Kumar Daga....
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....orate Debtor and perused the records. 11.2. The first issue before us is whether the Corporate Debtor herein, being the proprietor company of the proprietorship firm being The Mining & Engineering Corporation can be proceeded against for the liabilities incurred by the said proprietorship firm. In this regard, we would like to rely on the Hon'ble Supreme Court's decision in Amway India Enterprises Pvt. Ltd. vs. Ravindranath Rao Sindhia and Ors. [MANU/SC/0142/2021], wherein, while making it clear that that the consortium could not be allowed to rely upon their status as independent entities while dealing with MMRDA, the Apex Court held that: "15. By way of contrast, we have seen how the Respondents have themselves applied to become distributors of Amway products in India as a sole proprietorship concern under the relevant forms issued by the Appellant, read with the Code of Ethics referred to hereinabove. In Ashok Transport Agency v. Awadhesh Kumar, MANU/SC/0675/1998 : (1998) 5 SCC 567, this Court has clearly held that a sole proprietary concern is equated with the proprietor of the business as follows: 6. A partnership firm differs from a proprietary co....
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....eering Corporation, towards the Financial Creditor. Further, while the definition of "corporate person" under section 3(7) of the Code does not include proprietorship firms, in the instant case, the Corporate Debtor is a company as defined under section 2(20) of the Companies Act, 2013. Therefore the instant petition against the Corporate Debtor is maintainable in this regard. 11.4. The Corporate Debtor has further contended that the instant petition is not maintainable in light of the MOU dated 1/04/2009 between the two directors of the Corporate Debtor and Shri Magan Lal Daga. On perusal of the said MOU, it can be seen that while the Financial Creditor herein is mentioned as the daughter of the first party of the said MOU, the Financial Creditor herself is not a party thereof. The MOU has not been signed by the Financial Creditor. Further, the amount mentioned to be transferred by the Financial Creditor therein is different from the amount which is the subject matter of this petition. Therefore, the said MOU cannot be deemed to extend to the Financial Creditor herein and as such, the contention of the Corporate Debtor regarding the same is not maintainable. 11.5. The date o....