TaxTMI 
TaxTMI 
2022 (8) TMI 878
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....CD) acquired the premises detailed in the aforesaid agreements on leave and licence basis from the operational creditor (OC) and agreed to pay licence charges for the same and service charges for the services rendered. Allegedly, the corporate debtor breached the agreement and despite notices chose not to vacate the premises. In terms of the agreement dated October 3, 2015 the monthly fee payable by the CD is as under : Sl. No. Particulars of period Monthly fee (Rs.) 1. From 1st June to 30th November, 2015 Rent free period 2. 1-11-2015 to 30-11-2017 4,00,000 3. 1-12-2017 to 30-11-2018 4,75,000 4. 1-12-2018 to 30-11-2020 5,46,250 Further, in terms of leave and licence agreement dated October 5, 2015 monthly licenced fee payable by the CD as under : Sl. No. Particulars of period Monthly fee (Rs.) 1. From 1st June to 30th November, 2015 Rent free period 2. 1-11-2015 to 30-11-2017 1,00,000 3. 1-12-2017 to 30-11-2018 1,00,000 4. 1-12-2018 to 30-11-2020 1,15,000 3. The petitioner submits that despite issuance of notices by them to the CD respectively on December 12, 2016, May 16, 2017, May 29, 2017, April 17, 2021 they did not receive any payment and defau....
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....ue and payable. (7) Effect of termination letters (i) That since the corporate debtor failed to make any payment under the agreements, the operational creditor tried to terminate the agreements, however, the corporate debtor vide its letter dated June 13, 2017 (para graph No. 4 at page No. 90) refused to even acknowledge the existence of the agreements and as such refused to accept the termination of the agreements. The corporate debtor further refused to vacate the subject property. (ii) The corporate debtor continuing to be in possession of the subject property as a month-to-month tenant and thus, is still liable to pay monthly licence fee and monthly service fee to the operational creditor. In this regard OC has relied on the judgment MEC India P. Ltd. v. Lt. Col. Inder Maira [1999] SCC Online Delhi 422. (4) The corporate debtor continues to be in possession (i) The corporate debtor during the hearing dated April 1, 2022 stated that it is not in possession of the subject property, however, as per letter dated February 16, 2017 (paragraph Nos. 6 and 7 at page No. 65) and reply notice dated June 13, 2017 (paragraph No. 4 at page No. 90) the corporate debtor has admitted be....
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....ate of filing the petition, i. e., from September 14, 2018 to September 14, 2021. In the working sheet submitted by the petitioner (annexure IV, pages 21-23) of the petition arrears have been calculated from December, 2015 to March, 2021 for 64 months, but in view of the reason stated above petition is maintainable only in respect of arrears from the month of September, 2018 to March, 2021 for 31 months. In these circumstances it is concluded that entire claim amount is not barred by limitation, but claims prior to September 14, 2018 are barred by limitation however the dues for the periods from September, 2018 to March, 2021 is not barred by limitation. 6. Effect of arbitration clause and e-mails dated August 6, 2020 and August 31, 2020 : (i) The corporate debtor has sought to argue that arbitration proceedings are pending since the operational creditor had vide its e-mail dated August 6, 2020 (page Nos. 91-92) tried to invoke the arbitration clause. (ii) It is submitted by the OC that the corporate debtor vide its e-mail dated August 31, 2020 (page No. 92) rejected the invocation of arbitration clause. Thus, the arbitration proceedings never commenced. (iii) The corporate....
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....de;- 3 = Rs. 14,25,000 service charges due from December, 2018 to March, 2021 for twenty eight months at the rate of Rs. 5,46,250 Ã- 28 = Rs. 1,52,95,000 total arrears of service charges are Rs. 1,67,20,000. The maintenance charge due for the said period from September 2018 to November for three months at the rate of Rs. 42,500 Ã- 3 = 1,27,500 due from December 2018 to March 2021 for twenty eight months Rs. 48,875 Ã- 28 = 13,68,500 total arrears of maintenance charges are Rs. 14,96,000. As per the above calculation the service charges and maintenance amount dues alone come to (Rs. 1,67,20,000 + Rs. 14,96,000) Rs. 1,82,16,000 excluding interest, since interest does not form part of the operational debt. The petitioner argued that even if the arrears of rent amount under the leave and licence fee is excluded because of divergent views expressed by the appellate forum the remaining due amount towards service charge and maintenance charge alone are more than the threshold amount prescribed under section 4 of the IBC, 2016 hence the petition is to be allowed. It is settled law that even though the default amount mentioned in the petition is not proved but defaul....
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.... for the submission of claims under section 15. The public announcement referred to in clause (b) of sub-section (1) of the Insolvency and Bankruptcy Code, 2016 shall be made immediately. (iii) Moratorium under section 14 of the Insolvency and Bankruptcy Code, 2016 prohibits the following : (i) The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, Tribunal, arbitration panel or other authority ; (ii) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein ; (iii) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its properly including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002) ; (iv) The recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate debtor. (iv) The supply of essential goods or services to the corporate debtor as may be specified shall not be ....