TMI Blog2020 (4) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... de, 2016; (B) To direct the Respondent herein to adjudicate the claim of the Applicant as per the provisions of sub-section 8(f) of the section 5 of the Insolvency Bankruptcy Code, 2016; (C) To direct the Respondent to ratify the list of creditors of the company and also to declare the Applicant to be a member of the Committee of Creditors constituted for the purpose of initiation of CIRP proceedings against the Corporate Debtor; (D) Cost of the present application; (E) Such other and further reliefs as this Hon'ble Tribunal may deem fit in the interest of justice. 2. The brief facts of the case are as under: 2.1 Applicant claim to have paid ₹ 2 crores as earnest money towards the purchase of land of the Corporate Debtor. To that effect, the Applicant has filed proof of RTGS as well as account transfer receipt. It is submitted by the Applicant that in response to the advertisement made by the IRP, that he has submitted his claim as per prescribed Form-F i.e. submission of claim by the creditor (other than Financial Creditor and Operational Creditor) under regulation 9-A of the Insolvency Bankruptcy Board of India (Insolvency Regulation Process of Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is needless to mention herein that the order sheet contains the details of day-to-day proceedings to keep the track/continuity in the matter and those are not final order based on merit of the case. Hence, the allegations by the Applicant's lawyer that the Respondent lawyer is changing the statement every day is baseless. 4. The Applicant claim himself to be the Financial Creditor as he has claimed to have paid an amount to the Corporate Debtor against the purchase of the assets of the Corporate Debtor as earnest money. On perusal of the record, it is found that there is no agreement, as such, with regard to the sale and purchase between the Corporate Debtor and Applicant. In support of the contention, the Applicant has annexed a letter dated 27.02.2019 as Annexure-B purported to be issued in the name of Corporate Debtor and E-receipt of transfer of funds showing transfer of the amount in the account of beneficiary viz. Digjam Ltd. (Corporate Debtor). Apart from these documents, no other document(s) is/are annexed, where from it can be deduced that the amounts are paid against the agreement for the sale of assets of Corporate Debtor. 5. Further, one document i.e. Annex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence only when all the terms and conditions have been accepted and finalized between parties. If the facts of a particular case show that execution of a written contract was a condition precedent for coming into force of the contract between the parties, then it cannot be said that any concluded contract in absence of a written contract being executed has come into force between the parties, as observed in the J.K. Industries Ltd. v. Mohan Investments Properties (P.) Ltd. AIR 1992 Delhi 305. Cardinal principle in the light of section 7 of the Act, is that the offer and acceptance of an offer must be absolute without giving any room of doubt. 8. It is well settled that the offer and acceptance must be based or founded on three components - certainty, commitment and communication. If any one of the three components is lacking either in the offer or in the acceptance, there cannot be a valid contract. 9. Applicant in this case totally failed to produce any document in support of his claim which would make the Applicant even entitled in the category of other stakeholder. Even if it is assumed for the time, that the alleged letter dated 27.02.2019 of the Applicant is received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution; (i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h) of this clause; 11. The Applicant is claiming himself in the category stated in clause (f) sub-section 8 of section 5 which speaks about any amount raised under any other transaction, including any forward sell or purchase agreement having the commercial effect of borrowing . In the instant matter, the Applicant has failed to produce any documents/purchase agreement to substantiate his claim and/or show his bona flde as 'financial debt' so as to stand in the footing of Financial Creditor . 12. Not only this, there is also shadow of doubt on Annexure-B i.e. letter dated 27-2-2019 of the applicant upon which total claim is based as the claimant failed to produce proof of dispatch, claiming that applicant has paid the amount against the land of the Corporate Debtor as earnest money, the claim cannot be accepted in absence of any acceptance from the side of Corporate Debtor, so as to term it as valid contract. It m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le proprietorship concern in its own name unless there are specific amendments stating that proprietorship sues through its proprietor. It has been recognised in number of decisions that a proprietorship concern unlike a company or a partnership is not a legal entity and therefore any proceeding initiated by it would be a nullity. 15. Some of the important decisions on this aspect are as under: In Miraj Advertising Corporation v. Vishaka Engineering 115 (2004) DLT 471 it is held that: A proprietorship firm has no legal entity like registered firm. A suit cannot be initiated in the name of an unregistered proprietorship firm and the said suit is to be instituted in the name of proprietor 16. Thus, a proprietorship firm is not a legal entity - it is only the proprietor of the firm who is a legal entity and as such the petition should have been filed by the sole proprietor in his name on behalf of his sole proprietorship firm. 17. Section 3 of sub-section (23) speaks about the definition of a person which read as under: - person includes; (a) An individual; (b) A Hindu undivided family; (c) A company; (d) A trust; (e) A partnership; (f) A limite ..... X X X X Extracts X X X X X X X X Extracts X X X X
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