TaxTMI 
TaxTMI 
2021 (4) TMI 725
X X X X Extracts X X X X
X X X X Extracts X X X X
....ving identification No. U74900GJ2015PTC107035 and having registered office at Ahmedabad, Gujarat State. Authorised share capital of the respondent company is Rs. 23,31,00,000/- and paid up share capital is Rs. 22,75,07,670/-. 4. The applicant/operational creditor has stated that vide the Management Services Agreement (the agreement) dated 16.11.2018 (page 21-46), duly executed between the applicant and the respondent, the respondent company was granted an exclusive licence to operate and maintain the hotel under the brand "OYO" or "OYO Rooms". That, in accordance with Article - 1 read with Schedule - E of the agreement, the respondent is under the liability to pay the "Benchmark Revenue" amount of Rs. 4,50,000/- to the applicant on or before the 10th day of each calendar month and terms and conditions of the said agreement was reconfirmed by both the parties by exchanging certain email communications (page 47-50). 5. The applicant/operational creditor has stated that the respondent was regular in payment of the Benchmark Revenue amount as per the agreed terms from December, 2018 to June 2019, however, the respondent company defaulted in fulfilling its contractual obligation and t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e pre-existing dispute between the petitioner and MTH; * that, the remedy for adjudication of the issue lies before a different forum and not NCLT; * that, the application is incomplete as the applicant has not filed bank certificate along with the petition; * that, no debt is due and payable by the respondent; Findings: 10. Heard the learned counsels appearing for both the sides and perused the documents annexed to the application/reply. 11. On perusal of the records it is found that the respondent has contended that the present petition has been wrongly filed against the present respondent - Oyo Hotels and Homes Private Limited as the business of the present respondent was transferred to MTH with effect from 01.06.2019 and the same had been expressly intimated to all its partners, including the present petitioner. Therefore, even if the applicant has any grievance, the same can be raised only against MTH and not against the present respondent. It is pertinent to refer to intimation letter dated 30.04.2019, a document relied upon by the respondent, addressed to the petitioner by Alcott Town Planners Private Limited (Page 40 - Annexure R/1), contents of which are reproduce....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mstances, the liabilities accrue upon the respondent to make payment of the dues of the operational creditor. 13. On perusal of the records it is found that the petitioner has received part payment towards Bench Mark Revenue for the months July and August, 2019 from MTH in accordance with Article - 1, Schedule - E of the Management Services Agreement dated 16.11.2018 entered into between the petitioner and respondent and thereafter respondent started making default. This act and subsequent developments like MTH issuing Breach & Cure Notice to the applicant demanding copy of several documents from the petitioner clearly establishes that these are arm-twisting acts of MTH on behalf of the present respondent/corporate debtor to pressurise the petitioner to accept the changes in the Benchmark Revenue which was fixed under the Management Services Agreement. 14. The aforesaid chain of events clearly establish that the petitioner is operational creditor and the amount outstanding is operational debt. 15. The Adjudicating Authority is only required to consider whether there is any default and the debt is due and payable. In the instant case, the applicant has placed on record enough doc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r law for the time being in force. 21. Section 13 of the Code enjoins upon the Adjudicating Authority to exercise its discretion to pass an order to declare a moratorium for the purposes referred to in Section 14, to cause a public announcement of the initiation of corporate insolvency resolution and call for submission of claims as provided under Section 15 of the Code. Sub-section (2) of Section 13 says that public announcement shall be made immediately after the appointment of Interim Insolvency Resolution Professional. This Adjudicating Authority direct the Interim Resolution Professional to make public announcement of initiation of Corporate Insolvency Process and call for submission of claims under Section 15 as required by Section 13(1)(b) of the Code. 22. From the above stated discussion and on the basis of material available on record it is evident that the corporate debtor has committed default in payment of operational debt and, therefore, it is a fit case to initiate Insolvency Resolution Process by admitting the Application under Section 9(5)(1) of the Code. 23. The petition is, therefore, admitted and the moratorium is declared for prohibiting all of the following ....