TMI Blog2020 (1) TMI 1391X X X X Extracts X X X X X X X X Extracts X X X X ..... the petition should have been filed by the sole proprietor in his name on behalf of his sole proprietorship firm. On perusal of the definition it is clear that person must fall on the above category(s) - In the case in hand, the petition is filed in the name of M/s. D.K. Trading Company, a proprietary concern 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. On perusal of the records it is found that the only document produced by the applicant in support of its claim is copy of six invoices (pages 19-24). On perusal of said invoices it is found that the address shown in all the aforesaid six invoices vary from the address which is shown in the petition filed by the operational creditor - the application so filed is not maintainable and hence stands dismissed. - CP (IB) NO. 80/9/NCLT/AHM/2019 - - - Dated:- 31-1-2020 - Ms. Manorama Kumari, Judicial Member And Chockalingam Thirunavukkarasu, Technical Member For the Petitioner : Dr. Kamlesh Vaidankar, Adv. For the Respondent : Sunil Bhavsar and Haresh Shah, Advs. ORDER MS. MANORAMA KUMARI, JUDICIAL ME ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transactions can be validated from the ledger copy produced by the petitioner at page No. 25 of the petition. 6. It is further stated by the operational creditor that the respondent company had bought goods amounting to total ₹ 94,45,951/- during the period from 10-4-2018 to 6-8-2018 against which the respondent company had paid total of ₹ 45,04,174/- during the said period. That, the petitioner has taken credit of the amounts received during the said five months as per FIFO method and adjusted the receipt of amounts against the bills raised. Thus, the respondent did not make payment towards total six bills and made payment of half of the first bill. So, practically, the outstanding is towards five and a half bills. 7. It is further stated by the operational creditor that when the present petition was filed by the petitioner, the respondent company approached the petitioner and handed over the cheques of almost entire outstanding amounts to the petitioner to settle the matter finally. However, unfortunately each and every cheque issued by the respondent (after filing the present petition) was dishonoured. That, the petitioner has filed criminal complaints against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on showing the details of outstanding, e-mail communication, ledger account maintained by the operational creditor etc. 12. The respondent/corporate debtor filed affidavit in reply inter alia raising various objections. That, the corporate debtor has specifically denied having received the goods claimed to be supplied by the operational creditor vide invoices produced at page Nos. 19 to 24 of the petition. The corporate debtor has also denied having an office at the address where the operational creditor claims to have sent the invoices. That, the operational creditor has failed to produce any E-way bill, delivery challan, name of the transporter/lorry receipt, tanker number, driver's name etc. to validate such supply. 13. The corporate debtor has further stated that as per the provisions of Goods and Services Tax Rules framed thereunder, the supply to be made by E-way Bill as provided under Rule 138 of the Said Act and the operational creditor has failed to produce documents satisfying the said Rule 138. 14. As regards the five cheques each of ₹ 10 lacs issued by the corporate debtor in favour of the operational creditor dated 18-12-2019, it is stated by the cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roprietor in his name on behalf of his sole proprietorship firm. 19. 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 limited liability partnership; and (g) Any other entity established under a statute, and includes a person resident outside India. 20. On perusal of the definition it is clear that person must fall on the above category(s). In the case in hand, the petition is filed in the name of M/s. D.K. Trading Company, a proprietary concern 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. 21. 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. Thus, on the above said ground the application is not maintainable. 22. Apart from the above, the respondent has also raised some objections with regard to the maintainability of the application. The first and foremo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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