TMI Blog2020 (2) TMI 1442X X X X Extracts X X X X X X X X Extracts X X X X ..... course available is Section 12A of IBC. Nothing is shown from the records to claim that there was preexisting dispute - Even the judgment shows the name of Respondent No. 1 as the Operational Creditor in his personal name. The Adjudicating Authority in effect has allowed the defects to be cured. The objection on this count does not survive. We also note that Section 2 of IBC provides that the provisions of the Code apply, inter alia, to proprietorship firms . Further the definition of person in Section 3(23) of IBC is inclusive definition. There is no substance or merit in this Appeal - appeal dismissed. - Company Appeal(AT) (Insolvency) No. 321 of 2020 - - - Dated:- 25-2-2020 - A.I.S. Cheema, Anant Bijay Singh, and Kanthi Nara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irm and it was not a legal entity under the definition of person under Section 3(23) of IBC. It was also claimed that the Operational Creditor had added interest which was not stipulated in the agreement. The Adjudicating Authority, after hearing the parties, has admitted the Application under Section 9 of IBC and against the said admission, present Appeal has been filed. 5. In this Appeal, learned Counsel for the Appellant is submitting that the judgment was reserved on 20.01.2020 and the Respondent No. 1 amended the Memo of Parties on 22.01.2020. The argument of the learned Counsel is that the Proprietorship is not a legal person and thus Application under Section 9 of IBC could not have been maintained. According to the learned Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his agreement was made after the withdrawal of the petition and before the Application for restoration under Rule 11 of NCLT Rules, 2016 of the earlier Application was filed. 10. Learned Counsel for the Appellant further states that there are further talks with the Respondent No. 1 to settle the matter. Learned Counsel is thus requesting that time may be given to settle the payment. 11. It appears that 'Committee of Creditors' (in short 'CoC') has already been constituted and the CoC is set to have its first meeting to-morrow i.e. on 26.02.2020. Some Financial Creditors, who are part of CoC, are present through their Counsel raising objection that when the CoC is constituted, the only recourse available is Section 12A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ths the Respondent would be able make the entire outstanding payment to the Applicant herein. It is pertinent to mention that the Respondent has the intention to clear the outstanding amounts from April, 2020 onwards 16. After hearing submissions of both the Parties, this Bench is of the view that the Corporate Debtor had clearly acknowledged its liability (a) by entering into the settlement agreement dated 01.08.2019, and (b) in its reply dated 25.11.2019 wherein, the Corporate Debtor has clearly expressed its intention to clear the outstanding dues of the Operational Creditor from April, 2020 onwards. Further, the dishonoring of cheque dated 31.08.2019 bearing No. 218403, issued at the time of settlement amounts to default on the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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