TMI Blog2020 (6) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... of the e-mails exchanged between the two parties clearly establishes that there is/was pre-existing dispute before issuance of the demand notice. Thus the application is also not maintainable on account of pre-existing dispute which was raised prior to the issuance of demand notice. Application is not maintainable and is dismissed. - C.P. NO. (I.B.) 338/9/NCLT/AHM/ 2019 - - - Dated:- 17-2-2020 - Ms. Manorama Kumari, Judicial Member And Chockalingam Thirunavukkarasu, Technical Member For the Petitioner : Pratik Thakkar, Adv. For the Respondent : Dhruv Desai ORDER MS. MANORAMA KUMARI, JUDICIAL MEMBER. 1. The instant application is filed by M/s. Wind Water System showing itself as a proprietorship concern f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner has further stated that for certain supplies made to the corporate debtor company, invoice No. 12 dated 18-8-2015, invoice No. 5 dated 10-6-2016 and invoice No. 15 dated 21-11-2016 totalling to principal amount of ₹ 4,46,250/- plus interest of ₹ 1,83,977/-remains outstanding and payable by the respondent. That, the petitioner used to maintain a running account for the goods supplied to the respondent company from time to time. 6. It is further stated by the operational creditor that the respondent company had assured and acknowledged all the invoices raised and had promised to release the payment as per the terms and conditions of the order. However, the respondent company has miserably failed to clear the adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quality. That, the respondent had made repeated requests for repairs/replacements of the said plant and other allied machineries supplied by the petitioner, however, the petitioner failed to provide satisfactory reply. Findings 12. Notwithstanding above as those are the statements/pleadings of the parties in support of their claim, before proceeding further it is necessary to deal with the legal issue i.e. whether any proprietorship firm claiming to be operational creditor can file a proceeding/suit as it is not legal entity in the eye of law. A proprietor ordinarily means a person who carries on trade or business in a name other than his name. The law on this aspect is fairly well settled. No suit can be instituted by a sole propr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e) A partnership; (f) A limited liability partnership and (g) Any other entity established under a statute, and includes a person resident outside India 17. On perusal of the definition it is clear that person must fall on the above category(s). In the case on hand, the petition is filed in the name of M/s. Wind Water System, a proprietary concern as operational creditor, who is not a person for the purpose of filing the application u/s. 9 of the I B Code. Hence, on this ground itself the application is not maintainable. 18. It is also the duty of the Adjudicating Authority to dispose of cases jus dicers , in accordance with law as it is and not jus dare in accordance with law as it should be. 19. Apart from the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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