TMI Blog2021 (2) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to those categories which have been enumerated in the definition is not the correct interpretation of the law. The Hon'ble National Company Appellate Tribunal ('NCLAT') in the case of Neeta Saha v. Ram Niwas Gupta [ 2020 (2) TMI 1442 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI ] has addressed the issue of the maintainability of an application filed under Section 9 by a sole proprietorship and clarified that Section 2 of IBC amongst other entities, applies to proprietorship firms. Moreover, it also noted that the definition of 'person' in Section 3(23) of IBC is an inclusive definition. Thereafter, Hon'ble NCLAT has approved the initiation of CIRP against the CD after the sole proprietor filed the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner are as follows:- a) The UM Lohia Two Wheelers Private Limited (Corporate Debtor) is a private limited company dealing in manufacture and sale of two wheelers such as motorbikes and related spare parts. The company is duly incorporated under the provisions of the Companies Act 2013 having its registered office at A-79, DDA Shed, Okhla Industrial Area, Phase 2, New Delhi-110020. b) Hyderabad Deccan UM (Operational Creditor) is a Dealership of UM Lohia Two Wheelers Private Limited (Corporate Debtor) under the Sole Proprietorship of Ms. Srilatha Mantravadi. It came into existence after the Dealership Agreement (non-exclusive basis) dated 19th October, 2016 was signed between the Corporate Debtor and the Sole Proprietor of the Ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 08.07.2019 along with Applicable Interest of 12% p.a. g) That after the issuance of the demand notice, no communication has taken place between the Operational Creditor and Corporate Debtor. The applicant since then and till date is continuously demanding for making the outstanding payment and the Corporate Debtor are falsely assuring that the payments will be made, but however, no payments have been made, till the filing of this application. That in fact the Corporate Debtor acknowledged outstanding dues in several emails and assured that the same would be paid but to no payments have been received. h) That the Operational Creditor on the elapse of 10 days from the date of the statutory Demand Notice was entitled to initiate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er its name. The sole proprietorship firm of a natural person and the natural person owning the firm do not enjoy the benefit of being treated as separate legal entities. Therefore, it is submitted that a Sole Proprietary concern and its Sole Proprietor are one legal entity in law. It is for this reason, that the Sole Proprietor has unlimited liability, the income of the proprietary concern is considered as the income of the individual and hence is taxed accordingly. iii. The High Court of Andhra Pradesh in its judgment of Traders N Traders Vs. State Andhra Pradesh has stated that, In the instant case, Mr. V. Bhaskar Murthy filed the complaint on behalf of M/s. Traders N Traders, which is a proprietary concern representing the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne through the documents filed by the petitioner and heard the arguments made by the counsel of the petitioner. 5. Section 3(23) of the IBC defines person as: Person includes i. An individual ii. a Hindu Undivided Family iii. A Company iv. Trust v. a partnership vi. Limited Liability Partnership; vii. and includes a person resident outside India 6. A look at the definition specifies that it is an inclusive definition and hence the categories mentioned in the definition are only illustrative and there can be others also which can be covered under the definition. Thus to restrict the definition to those categories which have been enumerated in the definition is not the correct interpretation of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (2) The s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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