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2019 (5) TMI 1883 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - the Operational Creditors is sole proprietary firm - scope of term 'person', competent to prefer petition - HELD THAT:- A combined reading of the provisions namely Section 3(23), Section 5(20) read with Section 9 (1) shows that a petition can be preferred by a 'person' and who can be treated as an 'Operational Creditor' to whom an operational debt is owed by the Corporate Debtor and upon issue of notice of payment as provided under Section 8 of IBC, 2016 on default can come before this Tribunal by way of an application preferred under Section 9 of the Insolvency and Bankruptcy Code, 2016 - It is thus seen from the definition of a person as defined under Section 3(23) of Insolvency and Bankruptcy Code, 2016 that while an 'individual' has been included, however, there is no mention of a sole proprietary firm specifically to be treated as a person under IBC, 2016. It is by now trite that Insolvency and Bankruptcy Code, 2016 is a separate code by itself and where there is a specific definition of word and expressions as defined in the Insolvency and Bankruptcy Code, 2016 namely IBC, 2016 the definition of a such a word or expression cannot be imported from any other Act which is also explicitly clear from a perusal of Section 3(37) of Insolvency and Bankruptcy Code, 2016. In the present case, it is evident that a sole proprietary concern, namely M/s. Shiv Shakti Store is not competent to be considered as a 'person' to prefer a petition under Insolvency and Bankruptcy Code, 2016 and more so, as rightly pointed out by learned counsel for the Corporate Debtor that even though in the prescribed application under "AAA" Rules it specifically provides in the form under Part V of the said application the onus is to bring to the notice of this Tribunal the details of succession to the sole proprietary concern by Mr. Sanjay Rastogi who has sought to depose on behalf of the petitioner concern, no document by way of succession certificate or probate of will or letters of administration has been filed of Mr. Surendra Nath Rastogi. In any case as reasoned above, a sole proprietary concern is not a competent to file a petition in its own name as it cannot be considered as a person under the provisions of Insolvency & Bankruptcy Code, 2016. This application should fail on this preliminary ground alone and this Tribunal is constrained to dismiss this petition - Petition dismissed.
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