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TMI Blog2019 (2) TMI 1702X X X X Extracts X X X X X X X X Extracts X X X X ..... tor failed to make payment of the said debt amount, hence, the Petitioner has filed this Petition to initiate Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor on the ground that this Corporate Debtor failed to pay the total outstanding debt of Rs.2,81,250/-. 2. The Petitioner has submitted Form-5 along with the relevant documents such as computation of claim, Bank Account statements, Bank Certificate issued by Punjab National Bank, Lease Deed dated 13.10.2016 between the Petitioner & ors. and the Corporate Debtor, and consent letter from the proposed Interim Resolution Professional. Brief Facts of the Case: 3. The Petitioner states that the Corporate Debtor entered into a Lease Deed with the Operational Creditor on 13.10.2016. As per the Lease Deed, the Corporate Debtor issued some Post Dated Cheques payable on each months towards the compensation payable to the Operational Creditor. On presentation of the cheques dated 05.10.2017, 05.11.2017, 05.12.2017, 05.01.2018 and 05.02.2018 as agreed in the Lease Deed, those cheques were returned as dishonoured under the remark as "Account Closed". Therefore, the Operational Creditor sent a demand notice on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall pay an amount of Rs. 62,500/- per month each to Shri Nandlal Popat and Dayalal Popat by way of compensation for the period starting from 01.04.2015 till vacation of premises by the Lessee or 31.12.2018, whichever event last occurs." 7.1 The reason for reproduction of the above para is to distinguish the terms of the Lease Deed being different in respect of the owners of the property from the payment terms agreed upon in respect of agreeing parties consenting the terms of the Lease Deed. 8. In furtherance to the Lease Agreement, the Lessee given PDCs to the Lessors i.e. for monthly rent as well as the compensation to the ex-directors of the Lessee company - the Corporate Debtor herein. However, since October 2017 the cheque presented in the bank by the Petitioner bounced with remark 'Account Closed'. Ld. Counsel of the Petitioner has therefore concluded that there was undisputed debt of outstanding rent which was an admitted liability because of the issuance of cheques which were dishonoured, hence this Petition deserves admission. Submissions by the Corporate Debtor: 9. The Corporate Debtor has filed its written submissions wherein it is alleged that the Lessors faile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below with the purpose of addressing the claim and counter claim of both the sides. 13. The Corporate Debtor is a company running departmental stores in the rented premises of the Petitioner and his family members. The Petitioner was one of the directors of the Debtor Company earlier but due to some dispute he resigned along with his other family member who was also a director in the Debtor Company. Thereafter, the ex-directors who are the landlord of the premises demanded the Corporate Debtor to vacate but as the Corporate Debtor was in urgent need of the same place to run the business, earnestly requested the landlord/ex-directors to extend their agreement. As a result, they agreed to extend the Lease Deed up to 31.12.2018 with a monthly rent of Rs. 1,25,000/- p.m. together with a interest-free security of Rs. 7,50,000/-. The monthly rent was payable to the other family members of the Petitioner. Further, the Petitioner and his one other family member, who have resigned from the Corporate Debtor, was offered a compensation of Rs. 62,500/- p.m. each for the services rendered in the past to the company. At this juncture, it is worth to clarify that the arrangement with the Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court in the case of "Mobilox Innovations Private Limited v. Kirusa Software Private Limited" dated 21.09.2017 has said that the existence of dispute disqualifies admission of a Petition, but this case law is not going to help the Respondent Debtor because of the basic distinction that the claim in question falls within the definition of Section 3 (6) defining the term 'Claim' means right to remedy for breach of contract. Hence, nothing but an Operational Debt. 17. However, this Bench thoroughly perused the Civil Suit dated 02.05.2017 filed by the Corporate Debtor wherein the prayer is reproduced below: "a) By a decree of permanent prohibitory injunction the defendant may be restrain from the recovering the rent and from depositing the cheques for encashment to recover the rent from the plaintiff till the carry out repairs, they provide the uninterrupted water supply and till they allow to approach the terrace for the periodical maintenance and repair of cooling system. b) The Defendants and all the person claiming them may kindly be restrain from injunction from getting the premises vacated by giving effect to the term of period of lease in lease dated 13.10.2016. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (IV)That the order of moratorium shall have effect from 00.01.2019 till completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of corporate debtor under section 33, as the case may be. (V) That the public announcement of the corporate insolvency resolution process shall be made immediately as specified under section 13 of the Code. 20. Accordingly, this CP(IB)-443/2018 is hereby admitted. 21. The Petitioner has submitted the consent of the IRP viz. Mr. Manoj Jain, 11, Friend's Union Premises Co-operative Society Ltd, 2nd Floor, 227, P. D'Mello Road, Mumbai - 400 001. email: [email protected], Registration No.: IBBI/IPA-001/IP-00535/ 2017-2018/10960. His appointment is confirmed as Interim Resolution Professional to carry-out the functions as mentioned under Insolvency & Bankruptcy Code. 22. The Registry is hereby directed to communicate this order to the concerned parties. The appointed IRP shall submit the Progress Report on or b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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