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TMI Blog2019 (4) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... or and Corporate Debtor was neither in issue before the Adjudicating Authority nor has the same been disputed before this Appellate Tribunal. It is also not disputed that the relations inter-se the parties in regard to the licensed premises are governed by the Leave and License Agreement which stipulates in unambiguous terms that the license fee @ ₹ 88 per sq. ft. per month shall be calculated on the basis of super built up area . Since the debt and default is established, the Adjudicating Authority will admit the application under Section 9 of I B Code after providing an opportunity to the Respondent Corporate Debtor to settle the claim of Appellant, if it so chooses - appeal allowed. - Company Appeal (AT) (Insolvency) No. 51 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon the Respondent Corporate Debtor on 2nd January, 2018. Respondent did not respond to the same. The Appellant filed an application in the prescribed format under Section 9 of the I B Code before the Adjudicating Authority (National Company Law Tribunal), Kolkata Bench, Kolkata for triggering of Corporate Insolvency Resolution Process against the Respondent Corporate Debtor. However, the application came to be rejected in terms of impugned order dated 23rd July, 2018 passed by the Adjudicating Authority on the ground that the Respondent Corporate Debtor established that there was a pre-existing dispute in regard to rate of rent on the basis of carpet area and without settling the dispute it could not be held that the adhoc amount pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 2,00,728/- calculated on the aforestated basis. In this regard, reference is made to clause 2 of the Leave and License Agreement which reads as under:- The license fee of the licensed premises had been agreed to be paid by the licensee @ ₹ 88/- (Rupees Eighty Eight Only) per sq. ft. per month to be calculated on super built up area, and all other Municipal rates and taxes, service tax and all other statutory liabilities as applicable will be payable extra. All payment shall be made by A/c. payee cheque only. 3. It is contended on behalf of the Appellant that the Respondent paid the license fee in respect of the licensed premises from January, 2016 to November, 2016 at the agreed rate calculated on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requirements of Section 8. Dwelling on the scope of this provision in Innoventive Industries Ltd. v. ICICI Bank , (2018) 1 SCC 407 , the Hon ble Apex Court observed as under: 29. The scheme of Section 7 stands in contrast with the scheme under Section 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in Section 8(1) of the Code. Under Section 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned in sub-section (1), bring to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. 7. Adverting to the facts of the case in hand be it seen that the status of parties respectively as Operational Creditor and Corporate Debtor was neither in issue before the Adjudicating Authority nor has the same been disputed before this Appellate Tribunal. It is also not disputed that the relations inter-se the parties in regard to the licensed premises are governed by the Leave and License Agreement which stipulates in unambiguous terms that the license fee @ ₹ 88 per sq. ft. per month shall be calculated on the basis of super built up area . Municipal Taxes, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt conduct in paying the license fee at the agreed terms on the basis of super built up area speaks volumes about the hollowness of the plea raised on behalf of Respondent that the Respondent was under obligation to pay rent on the basis of carpet area which, on the face of it, is fallacious. 8. The Adjudicating Authority was not supposed to conduct a roving enquiry though it could have been within its rights to go for a limited exercise of sifting the material available before it for separating the grain from the chaff and to reject the spurious defense. The contractual relations inter-se the parties which are governed by the Leave and License Agreement do not admit of any oral agreement contrary to stipulations therein. Thus viewed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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