TaxTMI 
TaxTMI 
2017 (6) TMI 692
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.... manage the business of running a music concept store by name "Planet M" on behalf of the operational creditor, in consideration of which, the corporate debtor is liable to pay monthly conducting fee to the operational creditor. The said Agreement provides for a monthly minimum guaranteed fee of Rs. 11.00 lakh or a fixed percentage of net sale proceeds from the conduct of business, whichever is higher, payable on or before 5th of every month. 2. The operational creditor says that at request of the corporate debtor on the reasoning that the business venture is not making profit, on 24.6.2009, an Addendum to conducting Agreement was entered whereby the monthly minimum guaranteed conducting fee was scaled down to Rs. 7.00 lakh for a period of....
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....itor in addition to the bank certificate, filed an "affidavit in support" wherein he has enclosed exhibits A to E. Exhibit D contains a summary of debit notes raised between 1.4.2008 to 3.4.2017 (Part B) and supplementary debit notes raised for the same period (Part C). It is strange to note that the operational creditor has not enclosed the debit notes to the main application filed on 4.4.2017. Further the operational creditor has not enclosed the Business Conducting Agreement dated 1.2.2008 and its Addendum dated 24.6.2009 either at the time of filing the Application or even after a direction was given to file the relevant documents. 6. Previously the operational creditor filed Arbitration Application No.25009/2012 against the corporate ....
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....of the premises to the operational creditor on 4.3.2014. 8. The amount of Rs. 3,92,28,405/- shown in this Application as a debt is in respect of debit notes raised from 2.11.2011 to 5.4.2014. The operational creditor says that the first default occurred in October, 2011 and the default continued till 4.3.2014. The keys of the premises was also handed over to the operational creditor by the corporate debtor on 4.3.2014 as per the order sheet in the arbitration proceedings enclosed with the petition. 9. The operational creditor in the Arbitration Application at Para 22 stated that on 26.3.2012 and on 27.3.2012, the corporate debtor tried to interfere with the possession of the operational creditor and forcefully tried to operate business at....
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....dismissed on 4.3.2014 without any liberty, based on partial settlement orally agreed between the parties, this Bench cannot go into the issue already decided against the operational creditor. The contention of the operational creditor that since the last debit note was raised on 5.4.2014, this petition filed on 4.4.2017 is within the period of limitation does not hold water. 11. The another contention of the operational creditor that since Arbitration Application was filed for the appointment of Arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 and hence the recovery of debt is not barred by limitation, is far fetching in view of the fact that the Arbitration Application was dismissed on 4.3.2014 and that claim cove....