AI Drafter 
TaxTMI 
TaxTMI 
2020 (10) TMI 868
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....ed Company incorporated under the provisions of the Companies Act, 1956 on 09.10.2003, duly registered with Registrar of Companies, Delhi with CIN: U74999DL2003PTC122557 and the Registered Office of the Applicant is at 1-83 B, Second Floor, Lajpat Nagar-II, New Delhi (110024). 3. The Respondent is a Private Limited Company incorporated under the provisions of Companies Act, 1956 on 04.08.2006, duly registered with Registrar of Companies, Jaipur with CIN: U80302RJ2006PTC022906 and the Registered Office of the Respondent is at 102-103, Gopalpura Bypass, near Trivani Nagar Chouraha, Jaipur (302018). The Respondent/Corporate Debtor is in the business of running an education institution. 4. The counsel for the Applicant states that the Respondent had executed a License Agreement dated 15.04.2017 with the Applicant. It was agreed between the parties that the Respondent would use the Applicant's land situated at SP-10, Sitapura Industrial Area, Phase 4 Jaipur -302022, for the term of 5 years from 01.06.2017 to 31.05.2022, for the purpose of running an educational establishment. The Respondent had agreed to pay monthly license fee of Rs. 4,00,000/- in advance on or before 7th day....
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....on 11.09.2019 and raised a preliminary objection that the Applicant is not an Operational Creditor within meaning of IBC, 2016 and hence has no locus to file the present Application. The Respondent further submits that the claim of the Applicant is based on licensee fee and not in respect of any goods or services and thus the claim of the Applicant does not fall within the definition of "Operational Debt" as defined under Section 5(21) of the IBC, 2016. The Respondent submits that it had issued legal notice dated 23.04.2019 to the Applicant to perform his obligation as agreed while executing the license agreement. The Respondent had also filed injunction application on 09.05.2019 under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, 1998 against the Applicant before CJM, Court-26, Sanganer registered at 144/2019 in regard to the subject matter in the present application and the Applicant had also filed reply in the said injunction suit. The Respondent further submits that it has lodged FIR bearing No. 737/2019 against the Applicant for which investigation is pending till date. Thus, it is submitted by Respondent that there is a pre-existence of dispute. ....
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....are usually sent to spam and not received by the recipient. Thus, no such email was received by the Applicant. It is also submitted that the order passed by the Sanganer Court was for an application for temporary injunction regarding eviction and has no bearing on the present proceeding as the claim of license fee is neither raised nor dealt with by the Sanganer Court. Therefore, the said order has no bearing on the present proceeding. 14. The Applicant has filed written arguments and stated that as per clause 1c of the License Agreement, the Respondent has no claim against the Applicant and any or all complaints with respect to the demised property under the Licence Agreement have been sorted out before signing of the Agreement. The Applicant further states that the Applicant is a service provider as against a specified Licence Fee as it provides permission to the respondent to use a portion of its premises only for the purposes of an educational establishment. The Applicant relied the on the judgment of the Hon'ble Supreme Court in the case of Mobilox Innovations Pvt. Ltd. V/s Kirusa Software (P) Ltd. reported in (2018) 1 SCC 353, wherein the Hon'ble Supreme Court extr....
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.... 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. " 17. The Respondent has also filed its arguments and submits that the Hon'ble Supreme Court in the matter of Mobilox Innovations Private Ltd. versus Kirusa Software Pvt. Ltd. (supra) had only reproduced the report of the Committee with respect to the arrears of rent in nature of operational creditor and not recorded any observation/finding on it. 18. The Respondent has relied on the following orders in support of his contention that the non- payment of licence fee does not fall within the purview of Section 5(21) of the Code: a. The order of Hon'ble National Company Law Appellant Tribunal in the matter of Jindal Steel & Power Ltd. versus DCM International Ltd. in CA (AT) (Insolvency) No. 288 of 2017, dated 28.11.2017. b. The order of Hon'ble National Company Law Tribunal, New Delhi Bench in the matter of Mrs. Parmod Yadav and Ors. versus Divine Injracon (P.) Ltd. in IB No. 209/ND/2017, dated 28.09.2....
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....come due and payable and is not paid by the debtor or the corporate debtor, as the case may be; The above definition was amended with effect from 06.06.2018 to substitute the word 'paid' in place of 'repaid'. Section 3(10) "creditor" means any person to whom a debt is owed and includes a financial creditor, an operational creditor, a secured creditor, an unsecured creditor and a decree holder; Section 5(20) "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; Section 5(21) "operational debt" means a claim in respect of the provision of goods or services including employment or a debt in respect of the payment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority; The above definition was amended with effect from 06.06.2018 to substitute the word 'payment' in place of 'repayment'. 22. Further in the matter of Mrs. Pramod Yadav V/s Divine Infracon Private Limited (supra), the National Company Law Tribunal, New Delhi Bench ....
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....g initiated and restructuring process being put in place. Before proceeding further this Tribunal 'is refraining from going into the aspect where the immovable property in itself constitutes stock-in-trade of the corporate person and has a direct nexus to its input-output and being an integral part of the operation, In the instant case no such specific pleading to support such a contention has been placed on record by the petitioner, In fact even the Memorandum and Articles of Association of the Corporate Debtor has not been filed from which atleast the object for which the Corporate Debtor has been incorporated can be gathered, Thus, this Tribunal is of the view that lease of immovable property cannot be considered as a supply of goods or rendering of any services and thus cannot fall within the definition of operational debt'. 23. Also, in the matter of Jindal Steel and Power Limited Vs. DCM International Limited, (supra) passed by National Company Law Tribunal, New Delhi Bench and upheld by NCLAT, New Delhi it was held as follows: "in relation to transaction of immovable property the same cannot be considered as a transaction falling under the term 'operation'....