2019 (4) TMI 942

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....onal Creditor' provided a portion of third floor of her premises No. DD-30, Salt Lake City, Kolkata measuring 2281 sq.ft. 'super built area' to Respondent in terms of Leave and License Agreement executed inter-se the parties on 1st January, 2016 for a period of nine years for license fee of Rs. 88 per sq.ft. per month calculated on the basis of 'super built area'. The licensed premises was permitted to be used by the licensee (Respondent-Corporate Debtor) for carrying on business of restaurant under the name and style of 'Ramaanil Hotels & Resorts Pvt. Ltd.' after the same was inspected by the Respondent as stipulated in the Leave and License Agreement spread over page nos. 65 to 76 of the paper book. The Respondent - Corporate Debtor havin....

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....spondent on leave and license basis w.e.f. 1st January, 2016 for space measuring about 2281 sq. ft. 'super built area' on 3rd Floor (southern portion) of the premises no. DD-30, Salt Lake City, Kolkata in terms of Leave and License Agreement executed between the parties on 1st January, 2016 on the agreed license fees for a period of nine years has not been in controversy before the Adjudicating Authority. Even before this Appellate Tribunal factum and validity of the aforesaid Leave and License Agreement is not in controversy. The only issue raised by the Respondent - Corporate Debtor is in regard to existence of a prior dispute disentitling the Appellant to trigger Corporate Insolvency Resolution Process. Appellant's case is that the said ....

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.... and plausible dispute. 4. Per contra learned counsel for Respondent contended that there was ample evidence to indicate the existence of a plausible dispute between the parties prior to issuance of demand notice. Reference is made to Appellant's letter dated 4th September, 2017 addressed to Urban Development Department, rent receipts issued by the Appellant after June, 2017 and inspection report ordered by Executive Magistrate to buttress the point that a prior dispute existed between the parties with regard to calculation of rent on the basis of area of the premises. 5. Heard learned counsel for the parties and fathomed through the depths of the factual matrix as emerging from record. 6. Initiation of Corporate Insolvency Resolut....

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....erational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute 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 e....

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....id terms. The licensed premises comprising of approximately 2281 sq. ft. was marked and duly inspected by the Respondent before execution of Leave and License Agreement. Clause 30 of the aforesaid agreement provided that in the event of any dispute or difference arising between the parties the same shall be referred to sole arbitration of Mr. Sanjay Kumar Vaid, Advocate Kolkata. It is manifestly clear that the Respondent was sufficiently clear about the area of the licensed premises, which specifically provided for calculation of license fee on the basis of 'super built up area'. It was therefore absurd on the part of Respondent to question calculation of license fee in the aforesaid manner, that too after acting upon the aforesaid agreemen....

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....nsolvency Resolution Process. The Adjudicating Authority has clearly landed in error in rejecting the Appellant's version that the license fee was fixed for 'super built up area' and not for 'carpet area' as clearly stipulated in the Leave and License Agreement and the Appellant was under no obligation to reduce the rent. Reliance on irrelevant documents in coming to conclusion that there was a pre-existing dispute was uncalled for. The Adjudicating Authority also failed to notice that the Respondent never sought settlement of any dispute in regard to calculation of rent on 'carpet area' basis through arbitration which was the agreed mode of resolution of dispute between the parties in terms of the Leave and License Agreement. Significantly....