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2021 (12) TMI 1384
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....ate Limited (hereinafter referred to as "Operational Creditor" or "Ashimara') is engaged in the business of providing accommodation to students in the form of modern hostels, ii. That the Ashimara's Director, Mr. Karen Kaushish entered into discussions with one, Mr. Jatinder Pal Singh for running a long stay residential accommodation at property being Property No, 19/4, Shakti Nagar, New Delhi -110007. iii. That during the discussions, Mr. Jatinder Pal Singh represented himself as the Director and major stakeholder of two companies viz., the Corporate debtor and Juvello Homes Private limited. Mr. JP Singh also represented that the Shakti Nagar property is jointly owned by the Corporate Debtor and Juvello. iv. That based on their negotiations, the following terms were agreed vide email dated 29.04.2019 exchanged between Mr. Karan Kaushish and Mr. JP Singh: I. That the monthly license fee of 136 beds to be set up at the property would be INR 15,98,000/- ((e)INR 11,750/- per bed); II. That the license fee would start with effect from 15.07.2019 ie., the date when the Corporate Debtor would have the Shakti Nagar Property handed over to A....
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....um of INR 63,45,000/-. xi. That the Corporate Debtor immediately deposited the cheque no. 001431 dated 27.05.2019 for a sum of INR 32,43,000/-. As per the account statement of Ashimara, the said cheque was cleared on 28.05.2019. xii. That the Applicant submitted that the acceptance of this payment by Corporate debtor confirms its acceptance of the terms of the Operations and Management Agreement dated 15.05.2019. xiii. That the despite accepting the aforesaid payment, the Corporate Debtor as well as Juvello delayed the execution of, the originals of the Operations and Management Agreement sent by Ashimara, xiv. That since there was an unreasonable delay on part of the Corporate Debtor and Juvello in handover, Ashimara being suspicious of the transaction requested its Bank to stop payment of the cheque no, 001428 dated 01.07.2019 for a sum of INR 63,45,000/- issued in favour of Juvello. xv. That subsequently on 14 .07.2019, Ashimara informed the Corporate Debtor of its withdrawal from the project and requested the Corporate Debtor to return the payment of INR 32,43,000/- received by it towards advance license fee. xvi. Despite ma....
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....Appeal No, 9597 Of 2018. iii. That the agreements which have been annexed with the present petition are not properly signed by both the parties and there is not even whisper of witnesses on those agreements. iv. That the claim of the applicant is not an operational debt and does not cover under the definition of the operational debt as defined under section 5(21) of the IBC, 2016. v. That the petition by an operational creditor under IBC can only be filed, on the basis of invoice, which; in present case is not available, as there are neither such invoices nor agreement qua sale or purchase is involved. vi. That the agreement executed between the parties contains a valid arbitration clause. vii. That the cheque no. 001428 dated 01.07.2019 for a sum of INR 63,45,000/- given by the applicant to M/S Juvello Homes Pvt. Ltd. was dishonoured as it is the apprehension of the respondent that the applicant was not having sufficient funds in its bank account and thus, they directed their banker to stop payment against the said cheque and back tracked from the agreement, so that they may illustrate that it was entirely the default on the part of the....
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....idway and stopped payment of the cheque issued to M/s Juvello Homes Pvt, Ltd. resultant causing losses to the respondent as well as M/s Juvello Homes Pvt, Ltd. as the accommodation is still mostly vacant and the applicant is unable to stand on its promise as represented by the applicant. 5. The Applicant in its rejoinder dated 26.02.2020 submitted that: i. That Juvello Homes Private Limited is a third party and not the corporate debtor. ii. That the Applicant had never received the said 138 N.I. Act notice. The Corporate debtor has not annexed a single proof of delivery of notice under section 138 Negotiable Instrument Act. 'The Corporate debtor furnished false information regarding issuance of 188 notice and liable to be punished under section 77 of the IBC. iii. The Corporate Debtor himself admitted to the existence/execution of the Operation and Management 'Agreement in his own document issued on behalf of Juvello Homes private Limited ie. the alleged 138 N.1.Act's notice. The Corporate Debtor has further relied upon the Operation and Management Agreement in paragraph E, F etc of the reply of the corporate debtor, wherein he has sought invocation of....
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....r leading to the termination of the Operation and Managements Agreement and also instructions for stop payment of the cheque in question on behalf of the Operational Creditor. ix. The operational creditor had signed the agreement and had sent the signed copies to the office of the corporate debtor for his signatures and is unaware whether the corporate debtor signed the same or not, 6. The Applicant in its written submissions dated 27.07.2021 submitted that: i. That the reply to demand notice has not received by the operational creditors stipulated Limitation period. ii. That the Contention of the corporate debtor regarding preexisting dispute is false. iii. That the execution of Operation and Management Agreement has been accepted and admitted by the Corporate debtor in their own documents. iv. That the claim amount which is the subject matter of the present petition is an Operational debt. v. That advance payment for goods and services is an operational debt. The Applicant has referred the Judgement of Hon'ble NCLAT in the matter of Joseph Jayananda v. Navalinar (UK) Limited (2021 SCC Online NCLAT 116) vi....
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....rational Debt is a Claim towards Goods or Services. The Agreement clearly states that the Operational Creditor had to provide services viz Operational Management services, hence, the claim is an Operational Debt. 9. The Corporate debtor in its written submissions dated 14.07.2021 submitted that: i. There is pre-existing of dispute between the applicant and the respondent and there are triable issues which cannot be decided in summary procedure and the agreement based on which the present petition has been filed cannot be enforced being not signed by both the parties and in absence of any witnesses, which makes the entire agreement as null and void. ii. The amount subject matter of present petition is not operational debt and the applicant is not an operational creditor. The respondent has referred the Judgement of Hon'ble Supreme Court in the matter of "Swis Ribons Ltd. v. UOI and Hon'ble NCLT in the matter of "Jindal Steel & Power Ltd. v. DCM Interactional Ltd." iii. The alleged agreement upon which the applicants are relying mandatorily needs to be registered with the sub-registrar concerned, iv. The respondent has replied to the sta....
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....egal notice under Section 138 of the NI. Act and so, there is a pre-existing dispute. We further notice that apart from that, the Respondent has also claimed that there is no valid agreement, as it was neither signed nor registered under Section 17 of the Registration Act. 14. On the contrary, the claimed of the applicant is that the advance payment made towards the license fee is come under the definition of the Operational Debt and on this point the Applicant has placed reliance upon the decision of Hon'ble NCLAT in the matter of "Anup Sushil Dubey v. National Agriculture Cooperative Marketing Federation of India Ltd. And Another" (COMPANY APPEAL (AT) (Insolvency) No. 229 of 2020) (2020 SSC Online NCLAT 674) decided on 07% October, 2020 referred to Supra and he has also placed reliance upon the decision of Hon'ble NCLAT in the matter of "Joseph Sayananda v. Navalmar (UK) Limited (2021 SCC Online NCLAT 116) on the point of advanced payment. 15. Therefore, in the light of aforesaid background, we consider the prayer of the applicant. Since the Corporate Debtor has raised the point of maintainability of the application on the ground that the deposit of advance money an....
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....being in force and payable to the central government, any state government or any local authority. 1.5... Since the Corporate Debtor was an agent and service provider of the Operational Creditor, the amounts due under the transactions would fall within the ambit of Operational Debt as defined under Section 5 (21) of the Insolvency and Bankruptcy Code 2016." 17. At this juncture, we would also like to refer the decision of Hon'ble NCLAT in the matter of Anup Sushil Dubey Vs. National Agriculture Co-operative Marketing Federation of India Ltd. (COMPANY APPEAL (AT) (Insolvency) No. 229 of 2020) (2020 SSC Online NCLAT 674), The relevant portion of the decision is reproduced below: - "15. In Sarla Tantia V/s. Ramaanil Hotels & Resorts Pvt Ltd., this 'Tribunal while dealing with dues arising from the terms of the Leave and Licence Agreement held and observed it to be an 'Operational Debt'. This, 'Tribunal in Citycare Super Specialty Hospital V/s. Vighnaharta Health Visionaries Pvt. Ltd. has also observed that there is an admission of rent of certain periods to be due and payable which are reflected in the Books of Accounts, but subsequently, dismissed the 'Appeal' on....
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....ectricity (2) Water (3) Telecommunication Services (4) Information Technology Services To the extent, these are not direct input to the output produced or supplied by the Corporate Debtor. 19. The contention of the Learned Counsel for the Appellant that Regulation 32 read with Section 14 (2) is applicable to the facts of this, case and that cold storage facilities cannot be construed as 'essential service' and, therefore, does not fall within the meaning of 'Operational Debt' as defined under Section 5 (21), is untenable, having regard to the fact that Regulation 32 read with Section 14 (2) only mentions essential goods and services whose supply cannot be terminated during the course of CIRP, The Code does not anywhere specify that the goods so mentioned under Regulation 32 are the same as those which fall within the ambit of the definition of Section 5 (21). Annexure 1D of the Leave and Licence Agreement stipulates that the cold storage with the machinery and equipment has been designed for storage of all agricultural commodities. The Lessee being in need of a cold storage participated in the tender floated by the Lessor and sought for ....
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....pondent 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". 18 In the light of the decision referred to Supra, when we consider the submissions of the Corporate Debtor then we are of the considered view that the decision upon which the Corporate Debtor has placed reliance are not applicable in the case in hand, rather the decision upon which the applicant has placed reliance referred to Supra are applicable in the case in hand and in the basis of that we hold that the amount of Rs. 32,43,000/- deposited by the Petitioner towards the advance license fee for providing operational and management services comes under the definition of operational debt and the applicant is Operational Creditor. 19. Now coming to the merit of the application as we observe that it is admitted by the respondent that the said amount has been received by the respondent and it has not been paid as yet. The contention of the Respondent is that there is pre-existing dispute which the respondent has raised by issuance of the legal notice under Section 138 N.. Act. In our considered view, the issuance of....
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....sider the prayer of the applicant in terms of Section 9 (5), then it is seen that the application filed by the applicant is complete, there is no payment of unpaid operational debt or the invoices, notice for payment to the Corporate Debtor has been duly delivered by the Operational Creditor and no notice of dispute has been received by the Operational Creditor or there is no record of dispute. So far the Sth condition is concerned; the applicant has not proposed the name of the IRP rather he has prayed for appointment the Insolvency Professional. Therefore, we are of the considered view the applicant has fulfilled all the criteria as required under Section 9 (5) (i) of the IBC. Hence, wwe have no option but to admit the application. 22, Accordingly, we hereby ADMIT the petition. A moratorium in terms of Section 14 of the IBC, 2016 shall come into effect forthwith staying: (a) the institution of suits or continuation of pending 'suits or proceedings against the corporate debtor including execution of any judgement, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by th....