TaxTMI 
TaxTMI 
TaxTMI 
2024 (7) TMI 389
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....nil Sachdeva - Operational Creditor and initiated Corporate Insolvency Resolution Process ('CIRP' in short) against the Haldiram Fincap Pvt Ltd. - Corporate Debtor with immediate effect. Aggrieved by this impugned order, the present appeal has been preferred by the Authorised Representative of the Corporate Debtor. 2. Coming to the factual matrix of the present matter, the following salient sequence of events which require to be noticed for due consideration are as hereunder: * A Lease Agreement was entered between the Lessors-Late Shri Ram Prakash Sachdeva and Late Smt. Chand Sachdeva on 28.08.2016 with the Lessee/Corporate Debtor - Haldiram Fincap Pvt Ltd. ('HFPL' in short) in respect of leased property at Paharganj, New Delhi. * On the death of Late Shri Ram Prakash Sachdeva and Late Smt. Chand Sachdeva, their son, Mr. Sunil Sachdeva - Respondent No. 1 claimed the status of legal heir of the original lessors. * The Lease term was a period of 12 years from 28.08.2016 to 27.08.2028. The Lease Agreement was purportedly assigned by HFPL to Haldiram Bhujiawala Inc ('HBI' in short) on 16.12.2016. * On the grounds of non-receipt of rent and GST, the Respondent No. 1 served a n....
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....it was contended that this was an issue of long-standing dispute between the parties since the demise of the original lessors. Hence, it was contended that Respondent No.1 cannot claim to be treated as an Operational Creditor. 6. Moreover, it was submitted that HBI had sent an email on 18.01.2018 to Respondent No.1 stating non-usability of the leased premises for commercial purposes due to omissions on the part of Respondent No.1. The Respondent No. 1 had failed to provide necessary details of payment of conversion charges to Municipal Corporation of Delhi (MCD) which was needed to get health license for commercial usage of the property in terms of Para 9.1 of the Lease Deed. As the Respondent No. 1 had failed to provide the documents needed to get the health licence, HBI was unable to commence its business operations from the leased premises. A legal notice was also sent on 22.10.2019 by the HFPL to the Respondent No.1 intimating that due to failure to make payment of commercial conversion charges and other property/municipal taxes, they have not been able to do business in the leased premises. Since HBI had to suffer huge financial losses on this count and had to close their ope....
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....d ouster of Corporate Debtor from the said premises. It has been contended that such frivolous allegations have been made simply to evade their obligation to pay the operational debt owed to Respondent No.1. Clarifying their taking possession of the leased property, the Operational Creditor submitted that they took back possession of the leased premises only after the directions of this Tribunal dated 16.03.2023. 10. Coming to the issue of pre-existing disputes in the context of non- payment of conversion charges, it was submitted that the lease deed clearly outlined the responsibility for payment of conversion charges for commercial activity on Respondent No.2, which action was not taken by Respondent No.2. It was contended that Respondent No.1 cannot be blamed for the lapse on the part of the Corporate Debtor of not paying the conversion charges. It was stoutly contended that non-payment of conversion charges cannot be deemed to be a ground for pre-existing disputes. It was also added that the legal notice dated 22.10.2019 which had been sent by the Corporate Debtor cannot qualify as evidence of pre-existing disputes since the notice was served after filing of the Section 9 appl....
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....eal Paper Book ('APB' in short). The notice clearly mentions that the Corporate Debtor had been irregular in the payment of rent since 10.03.2017 and that no payment towards rent and GST was made since 30.08.2018. The Corporate Debtor was also called upon to make payment of total outstanding amount of Rs.52.64 lakhs including interest. Further in Part-IV, the operational debt claimed is Rs.94.66 lakhs inclusive of the arrears of rent and GST from 10.03.2017 till 31.05.2019 as principal amount of Rs.63.59 lakhs; Rs.13.59 lakhs as interest amount and Rs.17.47 lakhs as User and Occupation Charges from 01.06.2019 to 30.09.2019. In addition, an amount of Rs.4.48 lakhs per month after deduction of TDS and addition of GST has been claimed till continuance of the occupation of the leased premises. This clearly shows that the Operational Creditor had been consistently pressing for release of their outstanding amount while there is nothing on record to show that the Corporate Debtor objected or controverted the claims raised by the Operational Creditor prior to the issue of Section 8 Demand Notice. The above findings clearly establish that the first two conditions laid down in the Mobilox ju....
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.... Creditor, we find that this issue has been adequately and satisfactorily replied to by the Respondent No.1. We entirely agree with the Respondent No.1 that in accordance with the judgement of this Tribunal in Jaipur Trade Expo Centre supra, it is well settled that payment of license fee for use of leased premises for business purposes is clearly an operational debt. A conjoint reading of Sections 5(20) and 5(21) of IBC also clearly establishes that tenancy and lease rent dues fall in the category of operational debt as defined under Section 5(21) of IBC. Further, the question mark raised on the legitimacy of the Operational Creditor to raise the demand qua the Corporate Debtor also lacks force in view of the Respondent No.1 having claimed to have inherited the role of lessor based on registered wills dated 09.10.2013 and 24.08.2016 as placed on affidavit at pages 49-63 of the Reply filed by Respondent No.1. That the death of the deceased parents of the lessor had been communicated to the Appellant on 01.05.2018 and 16.06.2018 is evident from two emails as placed at pages 106-107 of APB. Further, not finding any material on record to show that that these communications were dispute....
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....perational Creditor. 19. As regards the other dispute raised by the Corporate Debtor with regard to their email dated 18.01.2018 on non-payment of conversion charges for the said property to the MCD and hence the denial of MCD health license to the Corporate Debtor and consequential non-usability of the leased premises for commercial purposes leading to business losses, it was pointed out by the Appellant that the email of 18.01.2018 clearly highlights a pre-existing dispute. 20. This issue has been duly considered and examined by the Adjudicating Authority in the impugned order and the findings are as extracted hereunder: "18. ......We have perused the email dated 18.01.2018, the contents of the said email are extracted below : "This is for your kind information that we have trying to last ten days for obtain the MCD Health Licence at MCD Anand Parvat Office. The department has not accepted our request letter due to conversation charges not paid by you against the property. We have lot of tried and ex-plane about the no liability of conversion of this property but the department has not agreed. We are requested is kindly come the MCD office for explain to the officer." ....
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....orate Debtor to the Operational Creditor premised on the email of 18.01.2018 lacks force. Quite apart from the fact that the Legal Notice was sent at a much belated stage, post the issue of the Demand Notice, we also find that this notice was also replied to by the Operational Creditor on 28.11.2019. Besides adverting attention to Clause 9.1 of the Leased Deed, reference was also made by the Operational Creditor to Clause 5.2 wherein it was clearly indicated that the possession of the leased premises was given on 'as is where is' basis and that the Corporate Debtor had satisfied themselves regarding usage of the leased premises. The relevant excerpts of the said reply to the Legal Notice reads as under : "8. That your present notice is nothing but a counterblast to the all notices dated 05.02.2019, 28.04.2019 served by our Client upon you calling upon to make payment of monthly lease rent and other charges along with interest. That vide notice dated 05.02.2019 you were called upon to make payment of the rent and interest from 30.08.2018 till 31.01.2019 as per the clause 4 of the said Lease Deed wherein 60 days grace period was given to you to rectify the breach and to make paymen....
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....orate Debtor-HFPL under Section 2(1)(c) of the Commercial Courts Act, 2015 reiterating that HFPL had not made any payment towards rent and GST payment in respect of the leased property since 30.08.2018. The said mediation application is placed at page 307-311 of the APB. It is also seen at page 306 of APB that when the mediation application came up before the competent authority on 13.08.2019, though the proxy counsel of Corporate Debtor-HFPL was present, the proxy counsel refused to participate in the mediation process and hence the matter was held to be a 'Non-Starter'. Since the matter became a 'Non-Starter', the mediation application stood closed. In such circumstances, the claim made by the Corporate Debtor that the commercial civil suit was pending in the Tis Hazari Court lacks foundation. Furthermore, when HFPL on their own accord refused to participate in the mediation process, it cannot now embark on the argument that the mediation application signifies pre-existing dispute. Therefore, we are of the considered view that neither of the two commercial suits can be construed to be a pre-existing dispute. 26. We find that the Adjudicating Authority in the present case has car....