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TMI Blog2017 (6) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... cation, since the Arbitration Application was dismissed on 4.3.2014 without any liberty, based on partial settlement orally agreed between the parties, this Bench cannot go into the issue already decided against the operational creditor. The contention of the operational creditor that since the last debit note was raised on 5.4.2014, this petition filed on 4.4.2017 is within the period of limitation does not hold water. Arbitration Application was dismissed on 4.3.2014 and that claim covered the debit notes raised from November, 2011 to the date of filing of Arbitration Application on 30.3.2012. In order to save limitation on this portion of the claim, the operational creditor should have obtained liberty to proceed against the corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not making profit, on 24.6.2009, an Addendum to conducting Agreement was entered whereby the monthly minimum guaranteed conducting fee was scaled down to ₹ 7.00 lakh for a period of only 26 months retrospectively from 1.2.2009 to 31.3.2011. 3. The operational creditor avers that the corporate debtor continued to pay only ₹ 7.00 lakhs per month from April, 2011 to September, 2011 as fees instead of paying ₹ 11.00 lakhs per month in terms of Business Conduct Agreement and the Addendum to the said Agreement. Thereafter, from October, 2011 the corporate debtor failed to pay the conducting fee and hence the operational creditor was constrained to terminate the Business Conduct Agreement (but the date of termination is not g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time of filing the Application or even after a direction was given to file the relevant documents. 6. Previously the operational creditor filed Arbitration Application No.25009/2012 against the corporate debtor on the file of City Civil Court, Mayo Hall, Bangalore, on 30.3.2012, in respect of this due, seeking the following reliefs: a. Issue an order of temporary injunction restraining the Respondent, its agents, servants, employees, henchmen and/or any person/s claiming through or under them from entering upon and interfering with the petitioner's peaceful possession and enjoyment of the Schedule Premises and from conducting its business from and out of the Schedule Premises. b. Direct the Respondent to deposit the sum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operational creditor in the Arbitration Application at Para 22 stated that on 26.3.2012 and on 27.3.2012, the corporate debtor tried to interfere with the possession of the operational creditor and forcefully tried to operate business at the premises. This clearly reveals that the operational creditor has not permitted the corporate debtor to run the business but continued to raise debit notes charging monthly minimum guaranteed fee even after March, 2012 to 5th March, 2014, even though the corporate debtor is not in possession of the premises where the music concept store functioning. 10. The Arbitration Application filed by the operational creditor reveals that the corporate debtor continued to pay the minimum guaranteed conducting fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntment of Arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 and hence the recovery of debt is not barred by limitation, is far fetching in view of the fact that the Arbitration Application was dismissed on 4.3.2014 and that claim covered the debit notes raised from November, 2011 to the date of filing of Arbitration Application on 30.3.2012. In order to save limitation on this portion of the claim, the operational creditor should have obtained liberty to proceed against the corporate debtor but that is not the case herein, the Arbitration Application was dismissed without any liberty. In so far as the debit notes subsequent to the filing of Arbitration Application the same is not covered in the Arbitration Applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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