TaxTMI 
TaxTMI 
2019 (4) TMI 939
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....ed 01-01-2016, (Annexure - B) the applicant rent out Southern portion of 3rd Floor of the building owned by the applicant measuring about 2,281 Sqft. super built up area fixing Rs. 88/- per Sqft. per month to be calculated on super built up area and all other municipal rates and taxes, service taxes along with the maintenance charge and generator back up charge and electricity charges as per the terms stipulated in the License Agreement. Upon execution of the Agreement between the petitioner and the respondent the respondent took possession of the building and started business in Restaurant from 26-02-2016 onward. The respondent took the possession and paid rent as agreed upon as per the License Agreement for the period from January, 2016 to November 2016. At the time of making the accounts, it was found that there was a short payment of Rs. 61,449/- in the month of April, 2016 and Rs. 50/- in the month of August, 2016. 3. From December, 2016 till the date of notice the corporate debtor has continuously defaulted in making payment on account of rent, maintenance, power back up and electricity. Only an adhoc amount of Rs. 3,19,019/- was paid by the corporate debtor to the operati....
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....e was a mutual understanding and arrangement in between the petitioner and the respondent and the petitioner agreed to limit the rent on the basis of the actual carpet area of the demised property and the excess payment previously made by the respondent for the period up to May 2017 would be adjusted or settled by the party upon mutual reconciliation of accounts and thereby the actual area is reduced to 1,665 Sqft. of carpet area from 01-06-2017. However, the applicant though reduced the area to 1,665 Sqft. From 2,281 Sqft. the total amount of rent is calculated on the basis of the disputed 2,281 Sqft, whereas the applicant has to reduce the rent @ 88/- per Sqft. for 1,665 Sqft. and proportional reduction in respect of the maintenance charge, power consumption charge are to be given. Despite the understanding the petitioner declined to reduce the rent and thereby a dispute arose in between the applicant and the respondent and there was a protest from the side of the respondent and some others also raised protest against the applicant and the applicant then preferred a complaint u/s. 144(2) of the Cr.P.C before the Executive Magistrate, Kolkata and the Executive Magistrate, Kolkata ....
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.... and was paid rent in terms of the License Deed till November, 2016 and thereafter defaulted and an ad hoc amount of Rs. 3,19,019/- alone was paid and remaining amount is in arrears is still due and, therefore, the applicant filed this application u/s. 9 of the I & B Code. 10. The respondent firstly contends that debt claimed by the operational creditor is neither a debt and nor any operational debt, which the respondent owes to the applicant. According to the respondent the applicant does not fall within the meaning of operational creditor and the respondent cannot be described as a corporate debtor. Accordingly, the application is liable to be dismissed. 11. The applicant herein in the instant case is a landlord who has licensed a portion of her premises to the respondent on the basis of a License Agreement. The application is filed by her claiming arrears of rent allegedly defaulted by the respondents. The claim for arrears of rent no doubt comes under the purview of operational debt as defined under Section 5 (21) of the Insolvency & Bankruptcy Code 2016. It reads as under: "operational debt" means a claim in respect of the provision of goods or services includin....
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....did not care to file a reply. However, contested the application seriously raising disputes in regard to the area of premises let out to the respondent as well as the rate of electricity charges claimed by the applicant. It is contended by the respondent that as per the terms of the License Agreement the respondent agreed to pay for the area measuring approximately 2281 Sq. Ft. of the licensed premises. Subsequent to the occupation and running of business by the respondent, the respondent discovered that the licensed premises does not cover the entire 2281 Sq. Ft. but lesser sq. ft. and that the carpet area in use by the Corporate Debtor does not exceed 1665 Sq. Ft. and there was a mutual understanding and arrangement in between the petitioner and the respondent and the petitioner agreed to adjust the bill with effect from 01.06.2017 and give a set of the amount in excess the corporate debtor has paid to the applicant. 15. According to the Ld. Sr. Counsel appearing for the respondent, despite the understanding, the applicant issued rent bill by reducing the area of licensed premises to 1665 Sqft. from 2281 Sqft., the applicant did not reduce the rent from 2281 to 1665 (1665x88) ....
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.... the respondent. It is an indication that there was a deliberation in between the applicant and the respondent in respect of the area in use by the respondent. It is a circumstance strengthening that there was a mutual understanding for reduction of the area in use by the respondent. 17. At this juncture, it is good to refer to a rent bill copy produced by the applicant claiming arrears of rent at page No.63 of the application. The carpet area in the demand rent bill shows 1665 Sqft. In the columns of rate of rent per month is kept as blank and the amount shown as Rs. 2,00,728/-. That means though carpet area is reduced proportional reduction of rent is not done as per the bill. The explanation forthcoming on the side of the applicant is that because the rate of rent was fixed as per the license deed is for super built area and not for carpet area and hence applicant is not liable to reduce the rent. Then why the reduced area as carpet area is shown in the bill no valid explanation. It is one another circumstances adding strength to the contention on the side of the respondent that there was an understanding but that understanding was not materialized from the side of the applic....
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....pute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the "existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defense which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defense is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application." 20. The above said proposition squarely applicable in the case in hand. No doubt the following questions arises for having a fair and just conclu....