TaxTMI 
TaxTMI 
2019 (3) TMI 1664
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....greement on 05.02.2015, wherein it was agreed that the Corporate Debtor would use the Hospital Premises of the Operational Creditor on Lease for the term of 5 years. The said Agreement was duly registered on the same date. The whole Leased premises was divided into two parts,i.e. part A and part B. It was agreed that if the Corporate Debtor uses only part A, then the License Fee will be Rs.15 Lacs per month with an increase of 7.5% per year. It was also agreed that after two years, or commencement of usage of Part B (whichever is earlier), the Licence fee would be the Rs.20 Lacs per month with an increase of 10% per year. It was also agreed that once this charge takes place, then it would be irrevocable and the same shall continue for rest of the license period. 3. It was also agreed between Operational Creditor and Corporate Debtor that the Licence Fee would be paid by 7th of succeeding month. The Corporate Debtor has regularly paid said Licence fee till December 2016. The licence fee for January 2017 has been defaulted by the Corporate Debtor, which was to be paid on 07.02.2017. From 07.02.2017 the License fee and charges for usage of basement payable by the corporate debtor b....
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....t the correct picture as the Corporate Debtor has made payments to Operational Creditor. 9. The Counsel for the Corporate Debtor also states that there is an existence of a dispute between the parties. Before the Demand Notice dated 28.02.2018 by Operational Creditor, email dated 22.02.2018 issued by the Corporate Debtor to Operational Creditor which records the understanding arrived and acted upon between the parties. 10. The Counsel for the Corporate Debtor states that the Company Petition for recovery of license fees rent is not maintainable under Insolvency and Bankruptcy Code, 2016 as already referred above and in any event, it is a settled law that IBC, 2016 shall not be used as a substitute for recovery of money. 11. As per oral understating arrived and acted upon between parties, only rent till March 2017 was payable by corporate Debtor, which has already been adjusted towards the security deposit. The Operational Creditor has not issued any invoice towards license fees after 31st March 2017 and thus on this count alone, the Company Petition deserves to be dismissed with heavy costs. 12. The Ld. Counsel states that the Operational Creditor has never demanded the....
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....purious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence 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." 15. Ld. Counsel for the Corporate Debtor has emphasised that this Company petition has been filed for recovery of license fees/rent which is not maintainable under IBC, 2016. It is further contended that the alleged debt is not an 'Operational Debt' and Petitioner is not the 'Operational Creditor'. Therefore, Petition is not maintainable. 16. Ld. Counsel for the Corporate Debtor has relied on the case law of Jindal Steel & Power Ltd vs DCM International Ltd, dated 6.10.2017. In the above case, the Corporate Debtor has taken a plea that an amount of claim in the petition itself cannot be categorised as Operational Debt, the applicant/Petitioner cannot claim itself to be Operational Creditor within the meaning of Section 5(20) of IBC, 2016, as the amount which is claimed to be in default does....
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....ld that the Appellant tenant do not come within the meaning of 'Operational Creditor' as defined under sub-section (20) read with sub-section (21) of Section 5 of the IBC, 2016 for triggering insolvency and bankruptcy process under Section 9 of the IBC." 20. In this case, admittedly here, Petitioner has filed this Petition relating to the claim following amount as mentioned in Annexure IV of the petition which is given below: 21. On perusal of the above chart, it is apparent that the petitioner/operational creditor has claimed the license fee of the hospital premises, amount receivable towards charges for basement and casualty in the building as per the agreement, along with the claim of amount receivable on account of purchase of medical equipment, the amount receivable towards reimbursement of insurance of building and other items as per clause 14.1 of the registered Lease and License Agreement. Details of license fees are given in the chart form on Page No.22 of the petition which shows that the Petitioner is claiming Rs.2,95,44,584/- as total amount receivable from the Corporate Debtor till 31.1.2018. The alleged amount includes interest and basic amount of license fees @....