TaxTMI 
TaxTMI 
2022 (1) TMI 264
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....rent from 25.03.2020 to 28.07.2020 as 'Operational Creditor' with a direction to the Resolution Professional to collate the claim and classify in terms of the Liquidation Mechanism under Section 33 of the Insolvency and Bankruptcy Code (hereinafter referred to as the 'Code'). I.A. 1570 of 2020 was preferred by the Resolution Professional of M/s. Cox & Kings Limited (hereinafter referred to as the 'Operational Creditor') before the Adjudicating Authority seeking the following directions: "i. Pass an order directing the Respondents to cooperate with the Applicant and to not restrain the Company and the Applicant from accessing, dealing with, taking over possession of and relocating the assets and records of the Company present at the premises; ii. Pass an order directing the local administration including police authorities to facilitate the Applicant in accessing, dealing with, taking over possession of and relocating the assets and records of the Company present at the Premises and for facilitation of the prayer (a) above; iii. A declaration that the Termination Notice dated 13.02.2020 to terminate the Lease Deed and Maintenance Agreement is effective and....
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....y which is already into CIRP and therefore, it is difficult for him to arrange the funds. Also, this does not mean that the Respondents are not entitled to be paid. There should be no injustice on the Respondents and it is the duty of the RP to look into the same. On the same time, the Respondents cannot henceforth withhold the assets of the Corporate Debtor and thus are directed to allow the RP to vacate the premises within 30 days from the date of this Order. The R is permitted to seek the assistance of the local police if so needed in vacating the premises. SHO of the concerned area is directed to render police assistance to the RP either on production of copy of this order or at the request made by the RP. 21. We hereby declare that the Lease Deed and Maintenance Agreement is terminated with effect from 15.09.2020 but not excluding the lockdown period from 25.03.2020 to 28.07.2020 as sought by the Applicant because the premises were in possession of the RP/Corporate Debtor during that period and the Respondents are therefore, entitled to be paid. Not doing so will cause prejudice to the rights of the Respondents for no fault of theirs. Therefore, the Respondents are di....
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.... the tenants. On 22.10.2019, the CIRP process of the 'Corporate Debtor' commenced. The IRP paid the Rent and Maintenance Charges from 22.10.2019 to 31.12.2019 of Rs. 1,00,59,436/- and Rs. 41,62,825/- respectively. Thereafter Mr. Ashutosh Agarwala was appointed as RP on 10.01.2020. Vide email dated 13.02.2020, the 'Corporate Debtor' expressed its intention to terminate the said Rent Agreement which was addressed by one Mr. Derrick Fernandes without mentioning any reference to the decision of the CoC/RP. It is argued that after termination and during the lockdown period, the lease premises were kept maintained and operational to have a proper remote access for emergency use which is also an admitted fact by the Resolution Professional in their email dated 25.03.2020. It is contended that a settlement was arrived at between the Appellants and RP and it was agreed that rent until 15.09.2020 would be paid. Pursuant to such an Agreement, the RP placed before the CoC, the claim amount of Rs. 3,26,29,896/-. The RP determined the amount payable by the 'Corporate Debtor' as Rs. 2,12,87,368. Instead of making the payment of Rent and Maintenance Charges as per the se....
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....It is argued that the RP issued a Termination Notice to the first Appellant terminating the Lease Deed as per Clause 13.4 as on 13.02.2020. Hence the Lease Deed stands terminated on 12.05.2020. Vide letter, dated 18.02.2020, the first Appellant has agreed that the Lease Deed would expire on 12.05.2020 in terms of Clause 13.4 and acknowledged receipt of the Termination Notice. A lockdown notification was issued on account of Covid-19 outbreak in March, 2020. On 01.06.2020 an employee of the 'Corporate Debtor' entered the premises to initiate the process of vacating, but was not permitted to do so. On 02.06.2020, the RP addressed an email to the Appellants requesting them to permit the employees to enter the premises for initiating the process of vacating. On 03.06.2020, the Appellants responded to the email categorically stating that no vendor will be permitted to enter into the premises, unless all outstanding dues were cleared. Another email, dated 12.06.2020 was issued by the Respondent seeking co-operation of the Appellants in initiating the process of vacating the premises. On 19.06.2020, the Appellants replied to the email, dated 12.06.20.20 stating ....
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....the corporate debtor [or their authorised representatives]; (c) displayed on the website, if any, of the corporate debtor; [(ca) filed on the electronic platform of the Board for dissemination on its website: Provided that this clause shall apply to every corporate insolvency resolution process ongoing and commencing on or after the date of commencement of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) (Fifth Amendment) Regulations, 2020;] (d) filed with the Adjudicating Authority; and (e) presented at the first meeting of the committee. 14. Determination of amount of claim. - (1) Where the amount claimed by a creditor is not precise due to any contingency or other reason, the interim resolution professional or the resolution professional, as the case may be, shall make the best estimate of the amount of the claim based on the information available with him. (2) The interim resolution professional or the resolution professional, as the case may be, shall revise the amounts of claims admitted, including the estimates of claims made under sub-regulation (1), as soon as may be pra....
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.... 12.05.2020 at your earliest and also handover the vacant peaceful possession of the demised premises with all fitting and fixture intact in good working condition as handed over at the time of execution of Lease Deed and enable us to process the necessary compliances of termination of Lease Deed. We also inform you that the maintenance agreement executed between Nimtaya Infrastructure Private Limited and Cox & Kings Ltd. stands terminated with effect from 13.02.2020 with the same terms and conditions. Please expedite the same." (Emphasis Supplied) 12. Section 25 of the Code deals with the duties of Resolution Professional and reads as hereunder: "25. Duties of resolution professional.-(1) It shall be the duty of the resolution professional to preserve and protect the assets of the corporate debtor, including the continued business operations of the corporate debtor. (2) For the purposes of sub-section (1), the resolution professional shall undertake the following actions, namely:- (a) take immediate custody and control of all the assets of the corporate debtor, including the business records of the corporate debtor; (b) r....
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....Maintenance Charges by the Respondent, the only right that accrues upon the two Appellants is to disconnect/discontinue the electric supply to the premises. Further, the Respondent looses their right to use the common facility and services specified in the Maintenance Agreement. The Agreement does not empower the two Appellants with any right to deduct the Maintenance Advance on account of non-payment of Maintenance Charges. 14. We are of the view that on account of the moratorium imposed under Section 14 of the Code on 21.10.2019, any action taken by the Appellants to enforce their Security Interest over their Security Deposits or Maintenance Advance by making any deduction from the same, subsequent to initiation of CIRP, would be in violation of Section 14 of the Code. It is also not in dispute that there was an attempt to settle the matter between the parties. In their settlement offer, the Appellants had agreed that the termination date for the Lease Deed and Maintenance Agreement would be 15.09.2020, giving additional one month grace period for vacating the premises. The emails dated 13th and 14th August 2020 establish the same. The Minutes of the Meeting of the CoC held on....
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.... Deed dated 28th March 2017 ("Lease Deed") executed between Nimitaya Infotech Private Limited and Cox & Kings Limited ("Company") whereby the Demised Premises (as defined under the Lease Deed) were leased to the Company for a period of 9 years. As you may be aware, the Company is curently undergoing Corporate Insolvency Resolution Process in terms of the Insolvency and Bankruptcy Code, 2016 (IBC). Mr. Ashutosh Agarwala, having Registration No. IBBI/IPA-001/IP P01123/2018-19/11901, is the Resolution Professional ("RP") of the Company. Vide Order dated 22nd October 2019, the Hon'ble National Company Law Tribunal, Mumbai Bench, (NCLT) was pleased to admit insolvency proceedings against the Company. A copy of the Order is enclosed herewith and marked at Annexure 1 for your ready reference. Vide Onler dated 10 January 2020, the NCLT was pleased to appoint Mr. Ashutosh Agarwala as the RP of the Company. A copy of the Order is enclosed herewith and marked as Annexure 2 for your ready reference. In exercise of its rights under the Clause 134 of the Lease Deed the Company wishes to vacale the said Demised Premises on or before 31st March 2020. We request you to kindly treat thi....