Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + AT Insolvency and Bankruptcy - 2020 (3) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (3) TMI 1216 - AT - Insolvency and BankruptcyCondonation of delay in filing appeal - the appeal has been filed with a delay of 15 days beyond the period as enunciated under section 61(2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It is to be borne in mind that section 5(20) of the "I and B" Code defined "operational creditor" means a person to whom the "operational debt" is owed and includes any person to whom such debt has been legally assigned or transferred. Section 5(21) of the "I and B" Code speaks of "operational debt", meaning a claim in respect of the provision or goods or service including employment or debt in respect of payment or dues assigning in law for the time being in force and payable to the Central Government, in State Government or in Local Authority. Sections 5, 6 of the "I and B" Code defines that dispute which includes a suit or arbitration proceedings relating to (a) the existence of amount of debt (b) the quality of goods or services or (c) the breach of a representation or warranty. In the present case, the respondent through e-mail dated March 23, 2018 had intimated the appellant/"operational creditor" that the payments were not received and that the same could not be received from SRS in as much as the customer "was not reachable and in bad shape" and that they had not received any payment from the customer till date. When the respondent had disputed the debt and the same being not payable by it, because of the reason that the purchase order and commercial proposal was executed between the "operational creditor" being a reseller of Microsoft programme and SRS group of companies and further as a collecting agent, the respondent in the considered opinion of this Tribunal cannot be held liable for the outstanding amount. In the present case, the claim of the appellant as an "operational creditor" does not fit within the purview of the definition of the term of "operational debt" under section 5(21) of the "I and B" Code on account of the fact that it was neither against any goods purchased by the respondent nor against any services availed by it. In the absence of any material to fasten the liability on the respondent by virtue of the terms of the purchase order, which was not addressed to the respondent the appellant/applicant cannot be characterised as an "operational creditor" as per definition of section 5(20) of the "I and B" Code. Taking into account the vital fact that the respondent in its reply notice dated May 17, 2018 had disputed the claim of the appellant and its liability to pay, etc., by raising serious bona fide factual pre-existing disputes, which requires an in depth examination/investigation and the said disputes which cannot be gone into any summary proceedings under the "I and B" Code, it is held by this Tribunal that the application filed by the appellant as an applicant before the learned Adjudicating Authority is not maintainable in the eye of law - appeal dismissed.
|