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2020 (1) TMI 1391 - Tri - Insolvency and BankruptcyJurisdiction - rights of proprietorship firm - filing of proceeding/suit - whether any proprietorship firm can file a proceeding/suit as it is not legal entity in the eye of law? - HELD THAT:- A proprietor ordinarily means a person who carries on trade or business in a name other than his name. The law on this aspect is fairly well settled. No suit can be instituted by a sole proprietorship firm in its own name unless there are specific amendments stating that proprietorship sues through its proprietor. It has been recognised in number of decisions that a proprietorship concern unlike a company or a partnership is not a legal entity and therefore any proceeding initiated by it would be a nullity. On perusal of the records it is found that the instant application is filed in the name of M/s. D.K. Trading Company as operational creditor. Even in Part I of Form 5 name of the operational creditor is written as M/s. D.K. Trading Company - thus, a proprietorship firm is not a legal entity - it is only the proprietor of the firm who is a legal entity and as such the petition should have been filed by the sole proprietor in his name on behalf of his sole proprietorship firm. On perusal of the definition it is clear that "person" must fall on the above category(s) - In the case in hand, the petition is filed in the name of M/s. D.K. Trading Company, a proprietary concern who is not a "person" for the purpose of filing the application u/s 9 of the I&B Code. Hence, on this ground itself the application is not maintainable. On perusal of the records it is found that the only document produced by the applicant in support of its claim is copy of six invoices (pages 19-24). On perusal of said invoices it is found that the address shown in all the aforesaid six invoices vary from the address which is shown in the petition filed by the operational creditor - the application so filed is not maintainable and hence stands dismissed.
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