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2021 (2) TMI 823 - AT - Insolvency and BankruptcyInitiation of CIRP - consent decree / Decree Holder - whether decree comes under the definition of Corporate Debt or not - Corporate Debtor failed to make repayment of its dues - existence of debt or not - Operational Creditor - capacity as a ‘person’ who is a proprietor of a firm is an ‘Individual’ - HELD THAT:- In the instant case, the Appellant/Petitioner has come out with a plea that the Respondent/Corporate Debtor had admitted to pay a sum of ₹ 7,50,000/- towards the Principal sum in respect of goods received by the Respondent/Corporate Debtor, as per ‘Settlement Agreement’ dated 16.8.2018 etc. Furthermore, ₹ 1,35,000/- towards ‘Penalty’ of ₹ 5,000/- per instalment per month as per ‘Undertaking’ given by the Respondent/Corporate Debtor and the same was recorded by the Learned Additional District Judge, Saket Court, New Delhi in Civil Suit No.6912 of 2016 in the case of Ashok Agarwal v. Amitex Polymers Pvt.Ltd.(Respondent/Corporrate Debtor) and Another. Therefore the total dues claimed by the Appellant/Operational Creditor as per ‘Consent Decree’ passed by the Competent Court of law is ₹ 8,85,000/- as seen from Part IV of Application wherein the “Particulars of Operational Debt’ were mentioned - Even a ‘person’ who is a proprietor of a firm is an ‘Individual’ as per Section 3(23) inclusive definition of The Insolvency and Bankruptcy Code 2016, in the considered opinion of this Court. As such, the Appellant is not incompetent in his ‘Individual’ capacity as proprietor of M/s Shree Marketing, New Delhi. The Principal Bench had come out with a plea that the Respondent/Corporate Debtor owes a sum of ₹ 8,85,000/- and for which a demand notice dated 11.3.2019 was issued to the Respondent/Corporate Debtor for which no reply was issued by the Respondent/Corporate Debtor to the Appellant/Operational Creditor and this Tribunal taking note of the prime fact that the Appellant/Operational Creditor is a ‘Decree Holder’ as per the ‘Consent Decree’ passed on 25.10.2018 in Civil Suit No.6912 of 2016 by the Learned Additional District Judge, Saket Court, New Delhi, this Court comes to an irresistible and inescapable conclusion that a ‘Decree Holder’ is no way excluded from the purview of the ambit of the term ‘Operational Creditor’ as per Section 5(20) of The Insolvency and Bankruptcy Code 2016 and the contra view taken by the ‘Adjudicating Authority’ in the impugned order is clearly held by this Tribunal as an unsustainable one in the eye of Law - In the present case, the Appellant/Operational Creditor supplied the goods based on invoices beginning from 19.2.2011 to 26.3.2011 amounting in all to a sum of ₹ 7,28,072/- and in due discharge of legal liability/lawful debt towards payment of dues/Invoices by the Respondent/Corporate Debtor had paid a sum of ₹ 1,10,221/- as mentioned by the Appellant/Operational Creditor in the Application in Part IV under caption of ‘Particulars of Operational Debt’. The other aspect of the matter to be significantly pointed out is that the Respondent/Corporate Debtor through its purchase orders had offered to make payment to the Appellant/Corporate Debtor within a period of 45- 60 days and in fact the payment was agreed to be made within 30 days from the date of Invoice. As a matter of fact, the Respondent/Corporate Debtor had not made any payment in respect of the due amount even after the ‘Consent Decree’ passed by the Competent Court of law. Section 3(10) of The Insolvency and Bankruptcy Code 2016 defines ‘Creditor’ and even in the said definition a ‘Decree Holder’ cannot be excluded to file an Application under the Code. Going by the definition 3(10) of ‘Creditor’, it includes ‘Financial Creditor’, ‘Operational Creditor’. The impugned order passed by the National Company Law Tribunal, New Delhi Bench is set aside by this Tribunal for the reasons assigned in the instant Appeal - Appeal allowed.
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