AI Drafter 
TaxTMI 
TaxTMI 
2019 (9) TMI 1471
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....erim Resolution Professional as prescribed under the Code and Rules thereon. 2. The averments made in the Petition are as follows: a. It is stated M/s. Manjeera Retail Holding Private Limited ("Petitioner") has leased commercial space bearing Unit No. 4 Restaurant 2 and 3 with total leasable area of 13098.27 sq ft and carpet area of 8,732.18 sq ft in the fourth floor of 'Manjeera Mall' situated in Kukatpally, Balangar Mandal, R.R. District ("Scheduled Premises"). The Scheduled Premises was leased for running restaurant and bar. The lease agreement ("Lease Deed") was executed on 06/08/2014 and the lease period ("LP") shall be from 02/08/2014 to 01/08/2023 and shall be subject to renewal in consonance with the terms and conditions under the Lease Deed. b. It is stated that as per the terms of the Lease Deed, amenities and common area maintenance ("CAM") Agreements, the Corporate Debtor had to pay the monthly rent (Comprising of lease and amenities charges) as revenue share at 13.5% of business turnover with minimum guaranteed monthly lease charges initially at Rs. 7,21,279/- (Rupees Seven Lakhs Twenty-One Thousand Two Hundred and....
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....tomers the power connection was restored. d. It is stated that the corporate debtor was aggrieved with the actions of the operational creditor, filed a suit in Hon'ble Principal Senior Civil Judge, Ranga Reddy District, L B Nagar for Injunction in OS No.1114 of 2017 and on 20.07.2017 an order was passed to maintain status quo. e. It is stated that the operational creditor has disconnected the power supply to the corporate debtors premises and thus insisted for the payment of an amount of Rs. 38,82,481/- and the Hon'ble Principal Senior Judge also directed the corporate debtor to pay an amount of Rs. 38,82,481/- in two instalments in its order dated 28.07.2017. f. It is stated that the corporate debtor complied with the order of the Principal Senior Civil Judge in IA No. 748/2017 in OS No. 1114 of 2017 and the Hon'ble Senior Civil Judge is adjudicating the dispute of rents payable. Therefore this application U/s. 9 of the code is not maintainable. g. It is stated that the suit is still pending and the next hearing date is on 05.07.2019 meanwhile the operational creditor filed this app....
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.... It is further stated that the instant dispute is not a purely landlord-tenancy dispute as claimed by the corporate debtor and it is a fact that the corporate debtor has failed to pay the amounts due on the invoices raised and the utilities enjoyed. It is stated that the corporate debtor is characterised itself as a company in terms of cash flow when the fact is that the corporate debtor is in serious cash flow issue. Therefore owing to the facts it is clear that the corporate debtor has defaulted in terms of payment and the Tribunal to admit the application. 5. We have heard the Counsel for Operational Creditor and Counsel for Corporate Debtor. The pleadings of both sides are briefly stated above. The Counsel for Corporate Debtor has relied on the following decisions: 01 NCLT New Delhi Bench order dated 06.10.2017 reported in 2017 SCC Online NCLT 989 in the matter of Jindal Steel and Power vs DCM International Limited 02. NCLT New Delhi Bench order dated 28.09.2017 reported in 2017 SCC Online NCLT 11263 in the matter of Mrs Parmod Yadav & Anr vs Divine Infracon Pvt Ltd 03 NCLT Mumbai Bench order dated 11.03.2019 in ....
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....ditor is providing services in the sense giving space in its premises to the Corporate Debtor for running restaurant and bar and providing amenities and it is not in dispute that Corporate Debtor is using the leased premises for running its business. The amount committed default is for the period subsequent to the order passed by the Civil Court. Counsel contended that there was no prior dispute. The Corporate Debtor however, contended that there was a civil suit filed by it against Operational Creditor. The Learned Counsel for Operational contended that the said dispute is not with reference to arrears of rent under the lease whereas the suit filed by Corporate Debtor is for a different purpose and as such it cannot be treated as a pre-existing dispute. Therefore, the Learned Counsel contended that the Petition is liable to be admitted. 10. On the other hand the Learned Counsel for the Corporate Debtor would contend that it has regularly been paying rent for the property leased out. The allegation that the Corporate Debtor committed default in not paying the rent is not true and correct. On 17.07.2017 M/s. Pioneer Property Zone Limited which is maintaining the Manjeera Mall int....
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....ter book-let. The Corporate Debtor also filed copy of written submissions and all other connected papers in OS No. 1114/2017 shown from pages 12-34. It also filed the order passed by the Civil Court dated 20.07.2017 in IA 749/2017 and also daily docket order dated 20.08.2017. The Principal Senior Civil Judge directed the Operational Creditor to restore power supply to the Corporate Debtor and further directed the Corporate Debtor to pay Rs. 38,82,481/- representing the rent for the months of June and July 2017 and further a direction is given to both sides to settle the balance due by 31.08.2017. Though civil suit was filed for injunction, yet the issue of rent was also looked into by the Civil Court. Admittedly, the said suit is still pending. The suit was filed prior to issuing demand notice under the Code. 12. The main contention of the Learned Counsel for Operational Creditor that the suit filed is for bare injunction and it is not for recovery of arrears of rent. Therefore, there is no preexisting dispute. We have gone through the papers in connection with the suit. The civil Court has also gone into the issue of arrears of rent and suitable directions were given. The Opera....
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....The Learned Counsel for Corporate Debtor also relied on the decision of Principal Bench NCLT reported in 2017 SCC Online NCLT 989 in the matter of Jindal Steel & Power Limited vs. DCM International Limited wherein the Tribunal held as follows:- Para 12 : From the records, it is also seen that by sending the notice of dispute dated 03.05.2017 by the Corporate Debtor in relation to the notice of demand dated 31.03.2017 as sent by the Petitioner, a dispute has been projected on the ground that a portion of the properties leased to the Operational Creditor was not given in time by it even after its termination which has occasioned loss of use of the property by the Corporate Debtor giving rise to financial loss to it. As held by the Hon'ble Supreme Court of India in Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited on 21.09.2017, it is not necessary that a claim of dispute as raised by the Corporate Debtor will ultimately succeed is not required to be established before the Tribunal in order to bring it within the meaning of dispute. A pre-existence of dispute which has plausible chance of success is sufficient and that the ground o....