2022 (5) TMI 203

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....iced Offices Pvt. Ltd. (for brevity 'Operational Creditor/Petitioner') inter alia seeking to initiate Corporate Insolvency Resolution Process against M/s. PropTiger Marketing Services Pvt. Ltd. (hereinafter referred as 'Corporate Debtor/Respondent) on the ground that the Corporate Debtor has committed a default of payment of its rental dues, for a total outstanding amount of Rs. 1,81,02,961.96/- (Rupees One Crore Eighty-One Lakhs Two Thousand Nine Hundred Sixty-One Rupees and Ninety-Six Paise Only). 2. Brief facts of the case, which are relevant to the issue in question, and as narrated by the Petitioner are as follows: 3. The Operational Creditor is in the business of providing workspace services to various clients and the Co....

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....greements by giving one month notice period and further directed the Petitioner to adjust the monthly office fee of the notice period from the security deposit that was placed with the Operational Creditor. 5. It is submitted that on 08.02.2021, the Operational Creditor replied to the Termination Notice stating that the same is invalid and illegal as at least three months written notice for termination of service agreement is mandatory as per the Service Agreement. The Operational Creditor issued a Demand Notice dated 09.07.2021 under Section 8 of the IBC, 2016 demanding payment of the unpaid dues from the Corporate Debtor. The Corporate Debtor issued a reply to the Demand notice by an email dated 07.08.2021, denying the payment of dues to....

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....ss of the corporate debtor. The Tribunal while deciding the case stated supra, has referred to its judgment in the matter of "Jindal Steel & Power Ltd. v DCM International Ltd". Company Appeal (AT) (Insolvency) No. 288/2017 wherein it was held that the Appellant tenant do not come within the meaning of "Operational Creditor" as defined under sub-section (20) read with sub-section (21) of section 5 of the IBC, 2016. 10. Another Bench of the Hon'ble Appellate Tribunal has taken a different view in the matter of "Anup Sushil Dubey v National Agriculture Co-operative Marketing Federation of India Ltd." (Company Appeal (AT) (Insolvency) No. 229 of 2020 dated 07.10.2020, where it was held that lease rentals arising out of use and occupation ....

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....e. The judgment of Hon'ble Supreme Court is awaited in this regard however no stay has been granted by the Apex Court in the appeal and only notice was ordered on 28.01.2021. Being the latest judgment and since the decision in Anup Sushil Dubey (supra) was also considered, and since no stay was granted by the Hon'ble Apex Court, Promila Taneja decision is binding on this Tribunal, as on date. 13. On 07.03.2022 the Hon'ble NCLAT in Company Appeal (AT) (Insolvency) No. 423 of 2021 in Jaipur Trade Expocentre Private Limited vs. Metro Jet Airways Training Private Limited after noting down the divergent views expressed in M. Ravindranath Reddy (supra) and Anup Sushil Dubey (supra) referred the subject issue to a larger Bench. Howeve....