TMI Blog2018 (8) TMI 1559X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (for brevity the rule ) for initiation of Corporate Insolvency process in respect of the Corporate Debtor. 2. The corporate debtor is a company incorporated under the provisions of The Companies Act, 1956. 3. It is the case of the applicant that on 11.09.2008 he booked a shop bearing No. G-24, having 1079 square feet area at ground floor in the Capital City Shopping Mall being developed by the Corporate Debtor Company and paid a sum of ₹ 5,00,000/- [Rupees Five Lakhs Only] on 11.09.2008. On receipt of the payment, the Corporate Debtor Company also issued an allotment letter dated 11.09.2008. Thereafter the applicant paid a sum of ₹ 40,12,000/- on 15.09.2008 apart from the booking amount of ₹ 5,00,000/-, against wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only] vide Cheque No. 445884 of dated 20.05.2015 against total commitment of ₹ 1,81,26,500/- as noted in this letter. 9. The applicant further on 14.07.2015, 23.07.2015 07.11.2015 received a sum of ₹ 45,00,000/- [Rupees Forty-Five Lakhs only] through three (3) different cheques which were deposited and cleared and received in bank account, on 14.07.2015, 23.07.2015 and 07.11.2015. 10. Due to non-payment of remaining amount the applicant, issued a demand notice vide letter dated 27.04.2016 demanding the payment of ₹ 1,21,26,500/-. 11. The applicant again sent another reminder demanding issued demand notice u/s. 271 of the Companies Act, 2013 on 19.12.2016, demanding therein payment of admitted liability of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e filed only by an Operational Creditor in respect of the operational debt. Therefore, a perusal of Section 9 of the Code would show that in order to maintain an application as an Operational Creditor the applicant has to satisfy the requirements of Section 5(20) and (21) of the Code. 16. The aforesaid expressions have been defined in section 5(20) (21) of the Code respectively which envisages that: 5. In this Part, unless the context otherwise requires,- (20) Operational creditor means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred, (21) operational debt means a claim in respect of the provision of goods or services including employ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The next question is whether the Petitioner could be regarded as an Operational Creditor within the meaning of section 5(20). 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 . 19. According to section 9(1) a petition like the one in hand could be maintained only by an Operational Creditor against ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
