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TMI Blog2021 (2) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellant/Operational Creditor as per Consent Decree passed by the Competent Court of law is ₹ 8,85,000/- as seen from Part IV of Application wherein the Particulars of Operational Debt were mentioned - Even a person who is a proprietor of a firm is an Individual as per Section 3(23) inclusive definition of The Insolvency and Bankruptcy Code 2016, in the considered opinion of this Court. As such, the Appellant is not incompetent in his Individual capacity as proprietor of M/s Shree Marketing, New Delhi. The Principal Bench had come out with a plea that the Respondent/Corporate Debtor owes a sum of ₹ 8,85,000/- and for which a demand notice dated 11.3.2019 was issued to the Respondent/Corporate Debtor for which no reply was issued by the Respondent/Corporate Debtor to the Appellant/Operational Creditor and this Tribunal taking note of the prime fact that the Appellant/Operational Creditor is a Decree Holder as per the Consent Decree passed on 25.10.2018 in Civil Suit No.6912 of 2016 by the Learned Additional District Judge, Saket Court, New Delhi, this Court comes to an irresistible and inescapable conclusion that a Decree Holder is no way excluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. Earlier, the Adjudicating Autority (National Company Law Tribunal, New Delhi Bench) while passing the impugned order dated 8.6.2020 in (IB) No.1895/ND/2019 at Paragraphs Nos.10 to 14 had observed the following: 10. At this juncture, we would like to mention this fact that the Appellant admit that he filed the present application for the amount which has been settled in Civil Suit No.6912/2016 and on the basis of a consent decree, the said amount became due and for that amount, the present application has been filed. Therefore, we would like to consider this whether decree comes under the definition of Corporate Debt or not. AT this juncture, we would like to quote the following definition of Section 3(10) and the same is quoted below: Creditor means any person to whom a debt is owed and includes a financial creditor, an Operational Creditor , a Secured Creditor, an Unsecured Creditor and a Decree Holder . 11. From the perusal of the aforesaid definition, we find that of course definition of creditor includes a Financial Creditor , an Operational Creditor , Secured Creditor , Unsecured Creditor and a Decree Holder but this definition does not shows t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bond or financial institution; (v) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h) of this clause; Section 5(21) of IBC, 2016 Operational Debt means a claim in respect of the provision of goods or services including employment or a debt in respect of the 6[payment] of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority; 13. If we shall read all the definitions together then we find that the Financial Creditor means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to whereas an Operational Creditor means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred. Since the present application has been filed under Section 9 of the IBC, therefore, we can say that the applicant claimed that on the basis of consent decree an Op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate Debtor had approached the Appellant/Operational Creditor and represented that it was in requirement of Goods/Material manufactured/supplied by the appellant and requested the Appellant/company to supply the same to it. Accordingly, the Respondent/Corporate Debtor placed the Purchase Order dated 17.2.2011 and the Corporate Debtor through its purchase orders offered to make payment within a period of 45 to 60 days but the payment was agreed to be made within 30 days from the date of invoices. 5. The Learned Counsel for the Appellant comes out with a plea that the Appellant/Operational Creditor supplied the chemicals/materials to the Respondent/Corporate Debtor through its Purchase Orders against which necessary Invoices were raised. As a matter of fact, copies of Invoices were sent to the Respondent/Corporate Debtor together with chemicals/materials and the same was acknowledged by the Respondent by affixing its Rubber Stamp and signature on the back of the respective Invoices. Added further, the Invoices clearly stipulate that the payment shall be made from the date of Invoice as agreed between the parties. 6. It is the grievance of the Appellant that the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Appellant/Operational Creditor issued a demand notice under Form 3 on 11.3.2019 and in fact, the said notice was sent though Speed Post on 13.3.2019 at the registered postal address and email on the registered email as was available on the web portal of the Registrar of Company, Ministry of Corporate Affairs . 11. The Learned Counsel for the Appellant forcefully contends that despite to notice having been served upon the Respondent/Corporate Debtor failed to pay the balance amount and also not responded to the notice. Therefore, the Appellant/Operational Creditor was per forced to file the Company Petition before the Adjudicating Authority. 12. The Learned Counsel for the appellant submits that the Respondent/Corporate Debtor was once again served with a Notice together with a Paper Book of the Company Petition in (IB)No.1895/ND/2019 and that the Respondent/Corporate Debtor had appeared and filed its Reply on 26.12.2019. 13. The Learned Counsel for the Appellant takes a stand that during the pendency of the Company Petition, the Respondent/Corporate Debtor deposited with the Appellant/Petitioner numerous cheques as detailed in the Reply but the said cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion if execution or other process issued on a decree or order of any court in favour of a creditor of the Company . Therefore, the decree or order that is comtemplated by Section 434(1)(b) is not confined only ti a money decree or an order for payment of money. On the other hand, it is general in nature. However, what we have to concentrate on is, whether a person who had obtained a decree for money against a Company will cease to be a creditor because of that fact, so as to take his case out of creditor, who has instituted a suit and obtained a decree against the Company, will still be a creditor of the Company to whom money is due by the Company. It may be that the original debt had merged in the decree and the person, who was originally a creditor, had become a decree-holder afterwards, but that does not in any way destroy his character as a creditor or the character of the money due to him from the Company as a debt. Thus, the position is that merely because a decree is obtained the creditor does not cease to be a creditor of a Company. 17. The Learned Counsel for the Appellant cites the decision in the Matter of Madhuban Pvt.Ltd. v.Narain Dass Gokal Chand [1971] 41 Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not open, for persons like the appellant to resist a winding up petition which is otherwise maintainable without there being any bona fide defence to the same. We may also hasten to add that the respondent cannot be said to be blowing hot and cold in pursuing a remedy under the Recovery of Debts Act and a winding up proceeding under the Companies Act, 1956, simultaneously. Here, it is important to refer to the judgement of Lord Atkin in Lissenden v. C.A.C.Bosch, Ltd., (1940) 1 All E.R.425, at 436-437, which says: The doctrine of election could have no place in the present case. The applicant is not faced with alternative rights. It is the same right that he claims, but in large degree. In Mills v. Duckworth, (1938) 1 All E.R.318, a plaintiff who had been awarded damages for negligence had taken the judgement sum out of a larger sum paid into Court and had then appealed against the quantum of damages, and was met by a similar objection to his appeal. Greer, L.J., in overruling the objection, pointedly said, at p.321: He (the plaintiff) said: I am not going to blow hot and cold. I am going to blow hotter. Here the applicant is not faced with a choice between alternative rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules 2016 under Part IV of Particulars of Operational Debt, Debt in S.No.1, the total amount of Debt was mentioned as ₹ 7,50,000/- (Rupees Seven Lakhs Fifty Thousand only), towards Principal amount in respect of Goods received by the Corporate Debtor and admitted, to be paid in the Settlement Agreement dated 16.8.2018. 24. Besides the above, ₹ 1,35,000/- (Rupees One lakh Thirty Five Thousand only) towards Penalty of ₹ 5,000/- (Rupees Five Thousand only) per instalment per month as per Undertaking given by the Corporate Debtor (Respondent) and recorded as per order dated 25.10.2018 by the Learned Additional District Judge, Saket Court, New Delhi in Civil Suit No.6912 of 2016 in the case of Ashok Agarwal(Appellant) V. Amitex Polymers Pvt.Ltd and Anr.(First Respondent/Corporate Debtor). In fact, the total dues were mentioned as ₹ 8,85,000/- (Rupees Eight Lakhs Eighty Five Thousand only). 25. The real grievance of the appellant is that the aforesaid Debt sum is payable, as admitted by the Respondent/Corporate Debtor and as recorded in its Undertaking and Consent Decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity in the impugned order had proceeded to observe that in the e-mail sent on 1.4.2019, it was mentioned that the notice which Appellant/Petitioner sent was returned with a remark Left and thereafter, the applicant sent the demand notice through e-mail [email protected] . Also that the Adjudicating Authority had stated in the impugned order that the master data enclosed by the Applicant as Annexure Page 2 also showed the name of the Directors of the Corporate Debtor Company (Respondent) but in the master data, email ID of the Director was not given rather one e-mail ID of which the Applicant(Appellant) claimed to send the demand notice was given . But from perusal of the same, it cannot be said that this e-mail ID is one of the persons as required under Rule 5(2) of the Adjudicating Authority Rule. In fact, the Adjudicating Authority in the impugned order opined that the email ID on which the Applicant(Appellant) had delivered the demand notice was neither of a whole time Director or Designated Partner or Managerial Director, Corporate Debtor and held that the demand notice as required under section 8(1) of Insolvency and Bankruptcy Code was not delivered etc. 31. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... includes a Financial Debt , Operational Debt . Section 3(12) of The Insolvency and Bankruptcy Code 2016 defines default meaning non-payment of debt when whole or any part or instalment of any amount of debt has become due and become payable and is not (paid) by the debtor or the Corporate Debtor, as the case may be. Section 3(23) of The Insolvency and Bankruptcy Code 2016 says person includes a) an individual; b) a Hindu Undivided Family; c) a Company; d) a trust; e) a partnership; f) a limited liability partnership; and g) any other entity established under a statute; and includes a president outside India; Section 5(20) of The Insolvency and Bankruptcy Code 2016 defines an Operational Creditor meaning a person to whom an Operational debt is owed and includes any person to whom such debt has been legally assigned or transferred. Section 5(21) of The Insolvency and Bankruptcy Code 2016 pertains to an Operational Debt meaning a claim in respect of the provision of goods or services including employment or a debt in respect of the [payment] of dues arising under any law for the time being in force and payable to the Central Government, any S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Additional District Judge, Saket Court, New Delhi in Civil Suit No.6912 of 2016 in the case of Ashok Agarwal v. Amitex Polymers Pvt.Ltd.(Respondent/Corporrate Debtor) and Another. Therefore the total dues claimed by the Appellant/Operational Creditor as per Consent Decree passed by the Competent Court of law is ₹ 8,85,000/- as seen from Part IV of Application wherein the Particulars of Operational Debt were mentioned. 41. Even a person who is a proprietor of a firm is an Individual as per Section 3(23) inclusive definition of The Insolvency and Bankruptcy Code 2016, in the considered opinion of this Court. As such, the Appellant is not incompetent in his Individual capacity as proprietor of M/s Shree Marketing, New Delhi. 42. This Tribunal aptly points out the decision in Punjab National Bank Dharamshala V. Premsagar Chaudhary and others reported in AIR 1996 Himachal Pradesh at P 86, wherein it is observed and held that it can be safely inferred that in terms of compromise, the Judgement Debtor /was to make payment of those it can be presumed that there is a subsequent order directing the payment of money is embodied in terms of compromise and thus, the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other aspect of the matter to be significantly pointed out is that the Respondent/Corporate Debtor through its purchase orders had offered to make payment to the Appellant/Corporate Debtor within a period of 45- 60 days and in fact the payment was agreed to be made within 30 days from the date of Invoice. As a matter of fact, the Respondent/Corporate Debtor had not made any payment in respect of the due amount even after the Consent Decree passed by the Competent Court of law. 47. Section 3(10) of The Insolvency and Bankruptcy Code 2016 defines Creditor and even in the said definition a Decree Holder cannot be excluded to file an Application under the Code. Going by the definition 3(10) of Creditor , it includes Financial Creditor , Operational Creditor . 48. Be that as it may, in the light of detailed qualitative and quantitative discussions and also this Tribunal keeping in mind the entire conspectus of the attendant facts and circumstances of the instant case in a holistic fashion comes to a resultant conclusion that the impugned order passed by the National Company Law Tribunal, New Delhi Bench dated 8.6.2020 as an incorrect and invalid one in the eye of law. V ..... X X X X Extracts X X X X X X X X Extracts X X X X
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