2021 (6) TMI 699

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....e Debtor. Alternatively, to permit the Applicant to take available recourse by filing a suit. 2. The facts giving rise to the Application are as follows. a. Bank of India, the Financial Creditor, filed the captioned Company Petition under Section 7 of the Insolvency and Bankruptcy Code, 2016 (the Code) against Gupta Infrastructure (India) Private Limited (hereinafter referred to as the Corporate Debtor) seeking Corporate Insolvency Resolution Process (CIRP). This Tribunal by order dated 01.02.2018 admitted the Company Petition. The CIRP however could not succeed and this Tribunal by order dated 02.01.2019 directed liquidation of the Corporate Debtor and appointed the Applicant as the Liquidator. b. The Corporate Debtor ....

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....n the present case and the Respondent could not escape the liability of paying the outstanding dues. Besides the Respondent has failed to serve the mandatory three months' notice. Since the Respondent had terminated the lease under his e-mail dated 13.07.2020, the Applicant treated the same as the three months' notice and the lease stood terminated on 12.10.2020. g. The Applicant has been running the Corporate Debtor as a going concern and has been receiving leave and license dues from other commercial units located in the Mall. The Respondent by his e-mail dated 26.10.2020 reiterated the invocation of force majeure clause and indicated that the clause overrode all other clauses of the agreement. The Applicant attempted to ....

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....ransportation. The goods lying in the shop were valued at Rs. 4,00,000/- and are deteriorating by the day. c) It is further submitted that the leave and license agreement dated 03.10.2012 was not registered. The force majeure clause did not envisage pandemic. Therefore, the provisions of Contract Act, 1872, would be applicable. The force majeure clause arising out of a pandemic is invoked worldwide and the same would be a valid ground to invoke the clause. Seeking the rent till 30.10.2020 under e-mail dated 23.10.2020 itself goes to show that the termination notice per force majeure was accepted. d) After coming to know about the reopening of the Mall, the Respondent got in touch with the Mall Management for a viable solut....

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.... and their ramifications including application of the force majeure clause would require an incisive judicial enquiry. It would not be possible for this Authority to go there into by in a summary proceeding as the present one. Since the Corporate Debtor is under CIRP, it would also be not appropriate for the Respondent to continue in the lease premises. His continuance in the shop would thwart the resolution process and would frustrate the object of the Code. It would accordingly be appropriate to direct the Respondent to handover the vacant possession of the shop room to the Applicant. 6. The Applicant may approach the appropriate judicial forum for realisation of the outstanding rent. We further feel that the realisation of the rent fo....