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TMI Blog2020 (6) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... erial at competitive prices by directly buying from large manufactures and enabling its customers to increase business efficiencies against cash payment or on credit basis. 3. Brief Facts of the case are as follows: i. In February 2011, the Corporate Debtor through its Director approached the Operational creditor and requested to supply various chemicals/materials. It was agreed between the Operational Creditor and Corporate debtor that the Corporate debtor will make payments in time upon raising of necessary invoice and as such timely payments was essence of the contract and was agreed that payment would be made within 30 days from the receipt of invoices. ii. Purchase order dated 17.02.2011 was placed on the operational creditor by the corporate Debtor. Corporate Debtor through its purchase order offered to make payment within a period of 45-60 days. However, the payment was agreed to be made within 30 days from the date of invoice. iii. The corporate debtor placed another purchase order dated 25.02.2011. iv. The goods were supplied by the operational Creditor vide following invoices: Invoice No. Date Amount (Rs.) 447 19.02.2011 35,700/- 448 19.02.2011 22,185/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts reply dated 26.12.2019: i. The Petitioner does not fall under the definition of ''Operational Creditor" u/s 3(23) of the Insolvency and Bankruptcy Code, 2016 as held in R.G. Steels Vs. Berry Auto Ancillaries Pvt. Ltd. by National Company Law Tribunal vide its order dated 23.09.2019 specifically held that by virtue of definition of term "person" as contained in Sec. 3(23) of IBC, it though includes individual but does not include a Sole Proprietary Concern. ii. The Petitioner has concealed that it has already settled its dispute outside court with the Respondent and the petitioner has received the post-dated cheques from the Respondent Company which are payable in the following schedule: Date Cheque No. Amount (Rs.) 23.10.2019 17134 1,11,000/- 15.11.2019 17135 1.00,000/- 25.11.2019 17136 50,000/- 15.12.2019 17137 1,00,000/- 25.12.2019 17138 50,000/- 15.01.2019 17139 1,00,000/- 25.01.2020 17140 50,000/- 15.02.2020 17141 1,00,000/- 25.02.2020 17142 50.000/- 30.12.2019 17144 50,000/- 30.01.2020 17145 50,000/- iii. The amount claimed is not a "Debt" as envisaged under its definition u/Sec. 3(11) of the IB Code, 2016. iv. The respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cture, we would like to consider the tracking report enclosed at page No. 57 of the application. On perusal of tracking report, we find that however a notice was sent on 13/11/2019, which was booked from the Jungpura SO but the same was not delivered to the registered office/Pin Code of the Corporate Debtor and the notice was returned to Jungpura SO from where the article was booked. We further find that the tracking report clearly shows that the address given by the Applicant was insufficient and it could not be delivered on the registered address of the Corporate Debtor, rather, it was returned to the Applicant. Therefore, the claim of the Applicant that he had delivered the demand notice as required under Section 8(1) of the IBC is not supported with the document. Thereafter, we have gone through the page No. 58 of the application i.e. annexure P7, which is the e-mail sent on 01/04/2019 and in this e-mail it is specifically mentioned that the notice which the Applicant sent was returned with a remark "Left" and thereafter, the Applicant sent the demand notice through e-mail "[email protected]". At this juncture, we would like to refer page 40 of the application i.e. master d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Creditor, an Operational Creditor, Secured Creditor, Unsecured Creditor and a Decree Holder but this definition does not shows that the decree holder means a financial creditor or an operational creditor. The words financial creditor and operational creditor are defined under Section 5(7) and 5(20) of the IBC and the same are quoted below: "Financial Creditor" means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to; "Operational Creditor" means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred;. 12. At this juncture, we would also like to refer the definitions of financial debt and operational debt and the same are quoted below:- Section 5(8) of IBC, 2016 "Financial Debt" means a debt alongwith interest, if any, which is disbursed against the consideration for the time value of money and includes-- (a) money borrowed against the payment of interest; (b) any amount raised by acceptance under any acceptance credit facility or its de-materialised equivalent; (c) any amount raised pursuant to any note purchase fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant claimed that on the basis of consent decree an Operational Debt became due but when we shall read the definition of Operational Debt then we find that the decree is not included as an Operational Debt, of course definition of Creditor include decree holder but definition of Operational Creditor does not include decree holder. 14. At this juncture, we would like to refer the latest decision of Hon'ble NCLAT passed in the matter of Digamber Bhondwe Vs. JM Financial Asset Reconstruction Company Limited in which Hon'ble NCLAT held ''We further reject the submission that because in Section 3(10) of I&B Code in definition of "Creditor" the "decree holder" is included it shows that decree gives cause to initiate application under Section 7 of I&B Code. Section 3 is in Part I of I&B Code. Part II of I&B Code deals with "Insolvency Resolution And Liquidation For Corporate Person", & has its own set of definitions in Section 5. Section 3(10) definition of "Creditor" includes "financial creditor", "operational creditor" "decree-holder" etc. But Section 7 or Section 9 dealing with "Financial Creditor" and "operational creditor" do not include "decree-holder" to initiate CI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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