2022 (11) TMI 104

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....btor'). 3. The present Petition was filed on 11 July, 2019 before this Adjudicating Authority. The total amount claimed in default is Rs.1,22,61,809/- (Rupees One Crore Twenty Two Lakh Sixty One Thousand Eight Hundred Nine only) as on 31 March, 2019, plus interest @24%. The date of default is stated to be on 31 March, 2021. 4. In part II of the Petition the authorized share capital of the Corporate Debtor is Rs.1,00,00,000/- (Rupees One Crore only) with subscribed share capital of Rs.47,50,000/- (Rupees Forty Seven Lakh Fifty Thousand only). 5. Submissions by the Ld. Counsel appearing on behalf of the Operational Creditor. 5.1 The Operational Creditor is the owner of the entire first and second floor (i.e., 10,812 sq. ft.) and an area of 5,406 sq. ft. on the ground and mezzanine floor of the building situated at plot nos. 749, 750, 751 and 752 at Kadru, P.S. Doranda, Thana No.208, being Doranda Municipal Holding No.55, Ward No.26, District - Ranchi ('leased premises'). 5.2 The Operational Creditor had leased out the first and second floor to the Corporate Debtor by way of a lease deed dated 08 February, 2013 ('first lease') and the ground and mezzanine floor by way of lease de....

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....l issued with respect to enjoying the leased premises. 6.6 The Operational Creditor had also stopped supply of water at the leased premises since May, 2019, which is contrary to the terms and conditions of the lease agreement. Further, as per the lease deed, ample parking space was to be provided to the Corporate Debtor but the Operational Creditor failed to adhere to the agreed terms and conditions. Notwithstanding its own liabilities, the Operational Creditor threatened to initiate legal proceeding against the Corporate Debtor. 6.7 Vide letter dated 27 June, 2019, the Corporate Debtor invoked the arbitration clause in terms of clause 40 of the first lease deed and clause 41 of the second lease deed. Justice Jayanandan Sing (Retd.) was appointed as the arbitrator to adjudicate the matter between the parties, arising out of the lease deed. Aggrieved with the deadlock with respect to the appointment of the Arbitrator, the Corporate Debtor has filed two petition being Arb. Petition No.17 of 2019 and Arb. Petition No.18 of 2019 before the Hon'ble High Court of Jharkhand under section 11(6) of the Arbitration and Conciliation Act, 1996. The said petitions are pending before the Hon'b....

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....he Central Government, any State Government or any local authority. 11. The first issues in this instant matter is similar to the issues raised before the five member bench of Hon'ble NCLAT in Jaipur Trade Expocentre Private Limited v. Metro Jet Airways Training Private Limited Company Appeal (AT) (Insolvency) No.423 of 2021 decided on 05 July, 2022 on 05 July, 2022; the issue was 'whether the licensee fee, which is claimed to be due from the Corporate Debtor, is an 'Operational Debt' within the meaning of section 5(21) of the Code.?' [Para 13]. Wherein, the Hon'ble NCLAT has held that the claim of Licensor for payment of license fee for use of Demised Premises for business purposes is an 'Operational Debt' within the meaning of Section 5(21) of the Code [Para 40]. 12. In the said Judgment, reference has also been made to the Bankruptcy Law Reforms Committee report submitted on 04 November, 2016 At pages 76 - 77 of the Report "Paragraph 5.2.1 - Who can trigger the 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 secu....

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....ase may be (Para 33). However, in this matter it is apparent that the Corporate Debtor never raised any dispute before the demand notice under section 8 of the Code. Further, as envisaged under section 9(3)(b) of the Code, an affidavit has been filed by the Operational Creditor. 15. Notwithstanding, the above facts and circumstance is also pertinent to mention that as per the Petition at page 4 the debt fell due on 31 March, 2019 but as per the written submission by the Operational Creditor the date of default is 23 September, 2018. 16. In light of the above facts and circumstances, we are satisfied that the present petition made by the Operational Creditor is complete in all respects as required by law. The Petition establishes that the Corporate Debtor is in default of a debt due and payable and that the default is more than the minimum amount stipulated under section 4 (1) of the Code, stipulated at the relevant point of time. Further, no disputes were ever raised by the Corporate Debtor. 17. It is, accordingly, hereby ordered as follows:- a) The application bearing CP (IB) No. 1067/KB/2019 filed by J. N. Hotels Private Limited, the Operational Creditor, under section 9 of ....