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THE NATIONAL COMPANY LAW TRIBUNAL

“CHANDIGARH BENCH, CHANDIGARH”

(Exercising powers of Adjudicating Authority under

the Insolvency and Bankruptcy Code, 2016)

(through web-based video conferencing platform)

IA No. 395/2021

In

CP (IB) No. 217/Chd/Hry/2020

Under Section 9 of Insolvency and

Bankruptcy Code, 2016.

In the matter of:

In IA No. 395/2021

Vijender Kumar Jain

through the Proprietor, M/s. Arihant Cycles,

with its registered office at

16/1, B-2, SITE-IV,

Industrial Area, Sahibabad, Ghaziabad

Uttar Pradesh, 201010

…Petitioner-Operational Creditor

Vs.

M/s. Atlas Cycles (Haryana) Limited,

with its registered office at

Atlas Road, Industrial Area,

Sonepat-131001, Haryana

CIN: U45400HR2011PLC048807

…Respondent-Corporate Debtor

Judgement delivered on: 10.10.2022

Coram: Hon’ble Mr. Harnam Singh Thakur, Member (Judicial)

Hon’ble Mr. Subrata Kumar Dash, Member (Technical)

For the Applicant :

Mr.Rajansh Thukral, Advocate

For the Respondent :

Mr. SP Singh Chawla, Advocate

IA No. 395/2021

In

CP (IB) No. 217/Chd/Hry/2020

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Per: Harnam Singh Thakur, Member (Judicial)

ORDER

IA No. 395/2021

The present application is filed, under Rule 53 read with Rule 11

of NCLT Rules, 2016 by Mrs. Sumati Jain as the legal heir of Vijender Kumar

Jain proprietor of M/s Arihant Cycles (hereinafter referred as applicant)

against M/s. Atlas cycles (Haryana) Limited (hereinafter referred to as

“Respondent”) in CP (IB) No. 217/Chd/Hry/2020 to substitute the name of

Vijender Kumar Jain and allow her to continue the proceedings in the present

petition.

2.

The brief facts of the case are that operational creditor has filed a

petition under Section 9 of IBC, 2016 for initiation of Corporate Insolvency

Resolution Process. However, during the said proceedings, Mr. Vijender

Kumar Jain expired intestate leaving behind 5 legal heirs. The four legal

heirs have executed relinquishment deed in favour of the applicant. It is

stated that the said application is filed with limitation i.e. 90 days of the death.

The amended memo of parties is attached as Annexure A-3 of the

application.

3.

The respondent has filed reply vide Diary No. 00904/4 dated

09.12.2021 wherein, it has been stated that legal heirs are not covered under

the definition of the operational creditors as defined under Section 5(20) of

IBC, 2016 which is reproduced below:-

“ 5(20) 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”

IA No. 395/2021

In

CP (IB) No. 217/Chd/Hry/2020

Page 3 of 6

The definition of person as used under Section 5(20) of IBC, 2016 is

prescribed under Section 3(23) of IBC, 2016. The contents of Section

3(23) are reproduced below-

“(23) “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;”

4.

The respondent has relied upon the judgment of M/s. Double

Seven Enterprises Vs. M/s. Vijay Fine Art Press on 30 August, 2018,

District Court(Delhi-Central) bearing number Suit No.: 07/14 (Old);

99188/16 (New) in which it has been held that the plaintiff cannot be allowed

to change his stance and again sought recovery from deceased proprietor of

M/s. Vijay Fine Art Press which after the death became sole proprietorship

firm of Sh. Nitin Srivastava (son of deceased) as the two propr