TaxTMI 
TaxTMI 
2019 (11) TMI 619
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....ofessional (b) pass any other order lo protect the interests of the petitioner and other creditors as the Hon'ble Tribunal may deem fit in the facts and circumstances of the present case" 3. In seeking the above reliefs, the petitioner has, in brief, mentioned the following facts in its application: 3.1 That the CD approached the OC for taking on lease, a property belonging to the OC which is located at 1st Floor, Dihang Arcade, G.S. Road, Guwahati and which consists of a built-up area of 6162 sq.ft. The OC agreed to lease out the said property to the CD and accordingly, a tenancy agreement was executed on 29.06.2010 between the OC and the CD for lease of the said property. In terms of the aforesaid lease agreement, the monthly rent from the CD was fixed at Rs. 40 per sq.ft., i.e. Rs. 2,46,480/- (Rupees Two Lakhs Forty-Six Thousand Four Hundred and Eighty only) for the period from 01.07.2010 to 30.06.2013 and Rs. 2,83,452 (Rupees Two Lakhs Eighty-Three Thousand Four Hundred and Fifty-two only) for the period from 01.07.2013 to 30.06.2016. The agreement further provided that upon renewal of the agreement, the rent payable shall stand escalated at the rate of 15% of th....
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.... must be owed by the Corporate Debtor to a creditor who can then be considered as an Operational Creditor as defined under Section 5(20) of the Code. It is further stated that the transaction of immovable property cannot be considered as a transaction falling under the term "operation" and "Operational Debt" unless such a transaction has a correlation of direct input to the output produced or supplied by the CD, and therefore, the petitioner does not fall under the definition of Operational Creditor and thus the claim of the petitioner cannot be considered as an Operational Debt. 4.1 The CD has submitted that the property wherein the petitioner company has rented out the immovable property does not belong to the petitioner company and therefore, the instant petition is liable to be dismissed. It is stated by the CD that no lease was executed by the parties and only a Tenancy agreement was executed on 29.06.2010 by both the petitioner company and the CD for the period from 01.07.2010 to 30.06.2013 and no renewal or new Tenancy Agreement was executed by the parties though there is a provision of renewal in the Tenancy agreement after expiry of every three years with rent enhanceme....
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....puted that the lessor had, through a Tenancy agreement dated 29.06.2010 given its immovable property situtated at Dihang Arcade, G.S. Road, Guwahati, and which consists of a built-up area of 6162 sq.ft. The show room and business of the lessee, tho CD, run from this property. Whether the tenancy agreement was renewed further etc. has no consequence as far as adjudication of the legal issue raised by the CD is concerned, namely that on the above facts the petitioner could not be considered as an OC under the Code of 2016. We find that this issue has been adjudicated upon by different benches of this Tribunal, as also decided in appeal by the Hon'ble NCLAT and we shall refer to them in reaching a conclusion. 6.1 Sub-section (20) of section 5 defines "Operational Creditor" as follows:"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'. Sub-section (21) of Section 5 defines 'Operational Debt' as follows: "operational debt" means a claim in respect of the provision of goods or services including employment or a debt in respect of the repayment of dues arising under an....
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....he definition of 'claim' as defined in Section 3(6). Such a claim, secondly should be capable of being treated as a 'debt' as defined under Section 3(11) of Code of 2016, and finally the 'debt' should fall within the confines of Section 5(21) of Code of 2016 i.e. it should be capable of being treated as an 'Operational Debt' and such an operational debt must be owed by the Corporate Debtor to a creditor who can then be considered as an Operational Creditor as defined under Section 5(20) of Code of 2016. On the specific issue of a debt arising from non-payment of lease rent, reference was made to the case of Divine Infracon (P.) Ltd. (Supra), which had held that such a petitioner will not fall under the definition of Operational Creditor and the claim which is sought to be made cannot be considered as an Operational Debt. 6.4 The Hon'ble NCLAT concurred with the above view, in its order dated 28.11.2017, when the same came up in appeal in the case of Jindal Steel (Supra). It concluded that in this case there was no claim in respect of the provision of goods or services and the debt in respect of the repayment of dues does not arise under any law for the time being in force payabl....