Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + Tri Insolvency and Bankruptcy - 2018 (8) TMI Tri This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (8) TMI 1559 - Tri - Insolvency and BankruptcyInitiation of Corporate Insolvency process in respect of the Corporate Debtor - Held that:- The framer of the Code has also defined the expression ‘Financial Debt’ in section 5(8) to mean a debt which is disbursed against the consideration of time value of money. However, the framer of the Code has not included in the expression ‘Operation Debt’ as any debt other than the ‘Financial Debt’. As confined to aforesaid four categories like goods, services, employment and Government dues. In the present case, the debt has not arisen out of the provisions of goods or services. The debt has also not arisen out of employment or the dues which are payable under the statute to the Centre/State Government or local body. Therefore, the present claim of the applicant cannot be considered as an ‘operational debt’ under the Code. The ‘Operational Creditors’ are those persons to whom the ‘Operational Debt’ is owed and whose liability from the entity comes from a transaction on operations. The applicant in the present case had advanced money towards booking of a shop and admittedly has neither supplied any goods nor has rendered any service etc. as defined in section 5(21) of the Code and as such his claim does not fall within the purview of operational debt, he cannot acquire the status of an ‘Operational Creditor’. According to section 9(1) a petition like the one in hand could be maintained only by an ‘Operational Creditor’ against the ‘Corporate Debtor’. In case the applicant does not fall within the definition of ‘Operational creditor’, his present application filed under section 9 for initiation of Corporate Insolvency process in respect of Corporate Debtor shall not be maintainable. Therefore, once the applicant is not an ‘Operational Creditor’ and his claimed dues not being ‘operational debt’, the present petition filed under section 9 of the Code for initiation of Corporate Insolvency Resolution Process is not maintainable. Once it is held that the applicant is not an ‘Operational Creditor’ and the debt in question not being ‘operational debt’, the present petition filed under Section 9 of the Code for initiation of corporate insolvency resolution Process is not maintainable and therefore rejected.
|