TaxTMI 
TaxTMI 
2022 (3) TMI 362
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....r deciding this Appeal are: * The Appellant entered into a 'Licence Agreement' with the Respondent on 15th April, 2017 for premises bearing no. SP-10, Sitapur Industrial Area, Phase 4 Jaipur. The Licensee took the premises for the purpose of running an Educational Establishment at the licence fee of Rs. 4 Lacs per month. Licensor agreed to hand over possession to the Licensee on or before 1st June, 2017. License was granted for an initial period of 5 years commencing from 1ST June, 2017 to 31st May, 2022. Appellant who is a Licensor received part payment made by the Corporate Debtor towards outstanding License Fee on 08th November, 2017 and 22nd November, 2017. Cheque dated 07th May, 2018 amounting Rs. 20 Lacs was handed over to the Appellant by the Corporate Debtor towards part payment which on presentation was dishonoured. Another Cheque dated 08.10.2018 amounting to Rs. 20 Lacs was handed over to the Appellant by the Corporate Debtor which too was dishonoured. * When despite several reminders and emails, the Corporate Debtor did not clear outstanding payment towards License Fee, a Demand Notice under Section 8 of the Code dated 3rd May, 2019 was issued by the A....
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....ny Goods and Services. Outstanding rent/license fee does not come within the meaning of Operational Creditor. The alleged due or rent from the Respondent-Corporate Debtor is purely a subject matter of Civil Suit before the Court under the jurisdiction of Civil Court. When the property was taken on the License there was not so many basic facilities and without basic facilities it was not possible for the Respondent to run their Educational Institute. The Respondent incurred expenses. Learned Counsel for the Respondent further submitted that the allotment in favour of the Appellant of the premises in question was also not in accordance with law and several notices have been issued by the Rajasthan State Industrial Development and Investment Corporation for cancellation of the allotment. Different entity has earlier applied for allotment and the premises were allotted to the Appellant for the purpose on 13th April, 2007. The cheques which were issued to the Appellant by the Respondent were for security purposes. 6. We have considered the submissions of Learned Counsel for the parties and perused the record. 7. The Adjudicating Authority in the Impugned Judgment after noticing th....
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....t of the Demised Premises create encumbrance of any kind such as mortgage, collateral security etc. or any other interestin favour of third party or otherwise. c. At the time of signing of this License Agreement, the LICENSEE undertakes and warrants that it does not have any claim against the LICENSOR with regard to any item of work, quality of work, materials, installation etc. any or all complaints that the LICENSEE had with respect to the Demised Premises have been sorted out by the LICENSEE with the LICENSOR before signing of this agreement. d. On termination of the agreement the LICENSEE undertakes to restore the demise premises to its original condition. .......... 4 LICENSEE FEE (a) In consideration of the LICENSE granted herein for the Demised Premises, the LICENSEE shall pay to the LICENSOR an amount of Rs. 4,00,000/- Lumpsump per month (Rupees Four Lacs only) plus Government Taxes if any payable to the LICENSOR by means of Banker's cheque/cheque payable at par, in advance on or before 7th Day of each English Calender Month. Any delay in payment of the LICENSE FEE beyond the 7th of each calendar month would attract inte....
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....s a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt" 11. The claim of the Appellant under Section 9 of the Code arising out of liability which fell on the Corporate Debtor to make the payment of License Fee as agreement dated 15th April, 2017 when the License Fee having not been paid it was clearly "debt" which was in default. 12. Now we may notice the Judgement of Hon'ble Supreme Court in "Mobilox Innovations (P) Ltd. Vs. Kirusa Software (P) Ltd." (2018) 1 SCC 353, where in Hon'ble Supreme Court has noticed the report of Bankruptcy Law Reforms Committee. Paragraph 5.2.1. of the Bankruptcy Law Reforms Committee has been quoted with approval. In para 5.2.1 the Committee stated: "5.2.1 . Who can trigger IRP? Here, the Code differentiates between financial creditors and operational creditors. Financial Creditors are those whose relationship with the entity is a pure financial contract, such as a loan or a debt security. Operational Creditors are those whose liability from the entity comes from a transaction on operations. Thus, the wholesale vendor of spare parts whose spark plugs are....
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.... or letting out of the building including a commercial, industrial or residential complex for business or commerce, either wholly or partly, is a supply of services." As the premises in the case on hand is leased out for 'Commercial Purpose', the cold storage owner/NAFED on collection is required to pay 'service tax' which is reflected in the tax invoices and 'Ledger Accounts' which is part of the record filed. 22. Therefore, keeping in view, the observations made by the Hon'ble Supreme Court in Para 5.2.1 of Mobilox (Supra), and having regard to the facts of the instant case this Tribunal is of the earnest opinion that the subject lease rentals arising out of use and occupation of a cold storage unit which is for Commercial Purpose is an 'Operational Debt' as envisaged under Section 5 (21) of the Code. Further, in so far as the facts and attendant circumstances of the instant case on hand is concerned, the dues claimed by the First Respondent in the subject matter and issue, squarely falls within the ambit of the definition of 'Operational Debt' as defined under Section 5 (21) of the Code." 15. Learned Counsel for the Respondent has placed reliance on the Judg....