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2021 (2) TMI 440 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Debt - allegation is that the petitioner herein does not fall under the definition of "Person" - existence of debt and dispute or not - HELD THAT:- A look at the definition of 'Person' as per Section 3(23) of the IBC, specifies that it is an inclusive definition and hence the categories mentioned in the definition are only illustrative and there can be others also which can be covered under the definition. Thus to restrict the definition to those categories which have been enumerated in the definition is not the correct interpretation of the law. The Hon'ble National Company Appellate Tribunal ('NCLAT') in the case of Neeta Saha v. Ram Niwas Gupta [2020 (2) TMI 1442 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] has addressed the issue of the maintainability of an application filed under Section 9 by a sole proprietorship and clarified that Section 2 of IBC amongst other entities, applies to proprietorship firms. Moreover, it also noted that the definition of 'person' in Section 3(23) of IBC is an inclusive definition. Thereafter, Hon'ble NCLAT has approved the initiation of CIRP against the CD after the sole proprietor filed the amended memo of parties by including his name. Thus, the operational creditor is a sole proprietorship firm and would fall within the definition of a person. An Operational Creditor means a person to whom an operational debt is owed/due. From the above, it is clear that the petitioner is an operational creditor of the respondent." Accordingly, the petition filed by a proprietary concern under Section 9 of the Code was held to be maintainable. The operational creditor has clearly established the existence of debt and default on the part of the corporate debtor - CIRP started - application admitted - moratorium declared.
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