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2020 (1) TMI 1243 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - scope of 'person' - proprietary concern - existence of debt and dispute or not - HELD THAT:- The Operational Creditor has filed the instant petition in the name of "Octopus Marine" as a "Proprietary Concern" and it does not come within the definition of "person" as contemplated under Sec. 3(23) of IBC, 2016. Further, the instant petition has been filed by the Petitioner in the capacity as an Operational Creditor as defined under Section 5(20) of the IBC, 2016 which defines an Operational Creditor as a "person" to whom an Operational Debt is owed and includes any person to whom such debt has been legally assigned or transferred. Thus, it is imperative on part of the Petitioner, in the instant case the Operational Creditor to demonstrate and satisfy this Authority that the Petitioner is a "person" as defined under Section 3(23) of the IBC 2016 - in the instant case, the Operational Creditor has failed to substantiate that the Petitioner is a "person" as defined under Section 3(23) of the IBC 2016, and as a consequence the Petition is liable to be dismissed on this ground itself as not maintainable. From the email addressed by the Corporate Debtor to the Operational Creditor, it is evident that the Corporate Debtor raised a dispute with regard to quality of service which is prior to issuance of Demand Notice - it is evident that there is a pre-existing dispute between the parties in relation to the quality of service provided by the Operational Creditor. By taking into consideration the definition of a "person", the "Proprietary Concern" cannot in its own name file a petition and also in view of the pre-existing dispute between the parties, we are constrained to dismiss this petition - Petition dismissed.
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