2022 (1) TMI 264 - AT - Insolvency and Bankruptcy

Seeking permission to first Appellant to file a claim in respect of the unpaid rent as Operational Creditor - seeking direction to the Resolution Professional to collate the claim and classify in terms of the Liquidation Mechanism under Section 33 of the Insolvency and Bankruptcy Code - HELD THAT - The RP enjoys the right to take control and custody of all the assets and records of the Corporate Debtor for the purpose of preserving and protecting the assets. The material on record shows that the RP responded to the claim forms submitted by the Appellants. Vide two letters dated 05.06.2020 and 30.08.2020 admitting part of their claims and informing that in the event, the verification of claims was not agreeable to them, they may take appropriate recourse under the provisions of the Code. In the claim forms, dated 04.11.2019, filed by the Appellants, no reference has been made regarding the deductions made from the Security Deposit or Maintenance Advance towards the outstanding dues. In the absence of any communication or initiation by the Appellants to the Respondents regarding adjustments made against the Security Deposit or the Maintenance Advance, it is evident that no such adjustments have been made by the Appellant. A perusal of the Maintenance Agreement shows that in the event of non-payment of Maintenance Charges by the Respondent, the only right that accrues upon the two Appellants is to disconnect/discontinue the electric supply to the premises. Further, the Respondent looses their right to use the common facility and services specified in the Maintenance Agreement. The Agreement does not empower the two Appellants with any right to deduct the Maintenance Advance on account of non-payment of Maintenance Charges. It is seen from the record that the RP prepared and submitted a comparative table of amounts and placed before the CoC, dues payable upto 15.09.2020. Having regard to the provisions of Section 14 of the Code, Regulations 13 and 14 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and Section 25(2) which relates to duty of the RP regarding custody of the asset of the Corporate Debtor , the Adjudicating Authority has rightly examined the provisions of the Agreement between the parties in detail. However, in para 21 of the Impugned Order, the Learned Adjudicating Authority has observed, Therefore, the Respondents are directed to file their claim before the RP for the unpaid rent from 25.03.2020 to 28.07.2020 and not beyond that . Appeal allowed in part.

Summary

Issues Involved:
1. Filing of a claim for unpaid rent by the first Appellant as an 'Operational Creditor'.
2. Directions sought by the Resolution Professional (RP) regarding cooperation, possession, and relocation of assets.
3. Validity and effectiveness of the Termination Notice dated 13.02.2020.
4. Waiver of Lease Rent and Maintenance Charges for the lockdown period.
5. Calculation of outstanding Lease Rent and Maintenance Charges.
6. Restraining the Respondents from adjusting amounts from the Security Deposit.

Issue-wise Detailed Analysis:

1. Filing of a Claim for Unpaid Rent by the First Appellant as an 'Operational Creditor':
The National Company Law Tribunal (NCLT) Mumbai Bench allowed the first Appellant to file a claim for unpaid rent from 25.03.2020 to 28.07.2020 as an 'Operational Creditor'. The Resolution Professional (RP) was directed to collate and classify the claim under the Liquidation Mechanism as per Section 33 of the Insolvency and Bankruptcy Code (IBC). The Adjudicating Authority emphasized that the amount due to the Respondents is an Operational Debt and suggested that the Respondents file their claim before the RP for verification and determination as per Regulations 13 and 14 of the Insolvency Resolution Process for Corporate Persons Regulations, 2016. The RP was instructed to pay the Respondents as per the waterfall mechanism under Section 53 of the Code.

2. Directions Sought by the RP Regarding Cooperation, Possession, and Relocation of Assets:
The RP sought directions for the Respondents to cooperate and not restrain access, possession, and relocation of the company's assets and records. The Adjudicating Authority directed the Respondents to allow the RP to vacate the premises within 30 days and permitted the RP to seek local police assistance if needed. The RP was recognized as an officer of the Tribunal responsible for running the company during the Corporate Insolvency Resolution Process (CIRP).

3. Validity and Effectiveness of the Termination Notice Dated 13.02.2020:
The Termination Notice dated 13.02.2020 was declared valid and effective from 15.09.2020. The Adjudicating Authority noted that the Lease Deed and Maintenance Agreement were terminated with effect from 15.09.2020, including the lockdown period from 25.03.2020 to 28.07.2020, as the premises were in possession of the RP/Corporate Debtor during that period. The Respondents were directed to file their claim for unpaid rent from 25.03.2020 to 28.07.2020, and any delay in filing the claim was condoned.

4. Waiver of Lease Rent and Maintenance Charges for the Lockdown Period:
The RP sought a full waiver of Lease Rent and Maintenance Charges for the lockdown period. However, the Adjudicating Authority did not exclude the lockdown period from the termination date, stating that the Respondents were entitled to be paid as the premises were in possession of the Corporate Debtor during that time. The Respondents were directed to file their claim for the unpaid rent for the lockdown period.

5. Calculation of Outstanding Lease Rent and Maintenance Charges:
The Adjudicating Authority directed that the outstanding Lease Rent and Maintenance Charges be calculated treating 15.09.2020 as the date of termination of the Lease Deed and Maintenance Agreement. The Respondents were advised to file their claim before the RP, and the RP was instructed to verify and determine the claim amount as per the regulations.

6. Restraining the Respondents from Adjusting Amounts from the Security Deposit:
The Adjudicating Authority directed the Respondents not to adjust any amounts from the Security Deposit or Maintenance Advance towards admitted claims. The Respondents were instructed to refund the Security Deposit within 30 days from the date of the Order. The Appellants contended that the Security Deposit should be refunded only after the premises were vacated, as per the Lease Agreement terms.

Assessment and Conclusion:
The Tribunal upheld the Adjudicating Authority's decision, with a modification that the Respondents should file their claims for unpaid rent up to 15.09.2020, instead of only for the lockdown period. The Tribunal confirmed the rest of the Order, emphasizing the RP's duty to preserve and protect the assets of the Corporate Debtor and the adherence to the provisions of the IBC and related regulations. The Appeal was partly allowed, and the modified Order was directed to be uploaded on the Tribunal's website and communicated to the NCLT Mumbai Bench.