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TMI Blog2019 (11) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh it may otherwise be a debt), and the petitioner cannot be termed as an Operational creditor within the meaning of section 5(20) and for the purpose of the Code of 2016. The matter does not require interference - petition dismissed. - CP (IB) No. 15/GB/2019 - - - Dated:- 9-8-2019 - MR. HARI VENKATA SUBBA RAO, MEMBER (J) AND MR ASHUTOSH CHANDRA, MEMBER (T) ORDER Per : Ashutosh Chandra, Technical Member Before us is an application filed under Section 9 of the Insolvency Bankruptcy Code, 2016 (in short, Code of 2016) read with Rule 6 of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (in short, Rules of 2016) seeking initiation of Corporate Insolvency Resolution Process (in short, CIRP) by one M/s. Aurora Accessories Pvt. Ltd., stated to be an Operational Creditor (in short, OC) against M/s. Ace Acoustics Audio Video Solutions Pvt. Ltd., stated to be a Corporate Debtor (in short, CD). 2. In the said application, the petitioner has sought the following reliefs: (a) allow the present petition and appoint the Interim Resolution Professional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 49,09,072/- (Rupees forty-nine lakhs nine thousand and seventy-two only) as on 31.01.2019 and such amount has further accrued, in the meantime. In these circumstances, it is stated that the OC was compelled to serve statutory notice dated 04.02.2019 under Section 8 of the Code read with clause (a) of sub-rule 5 of the Code ( Notice ) calling upon the CD to repay the unpaid Operational Debt in full within 10 days of the date of receipt of such notice. In spite of service of such notice, the CD never cared to clear the dues to the OC. 4. The CD entered appearance upon receipt of the notice and filed its reply urging this Bench not to admit the application, stating that the instant petition is not maintainable both in facts and law. According to the CD, any amount claimed as due by a person representing as Operational Creditor should first demonstrate that the said amount in default falls within the definition of claim as defined in Section 3 (6). Secondly, such a claim should be capable of being treated as debt as defined under Section 3(11) of the Code and finally the debt should fall within the confines of Section 5(21) of the Code, i.e. it should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... works of hired building of your client bearing a cost of ₹ 60,00,000/- from their own savings . The CD has, therefore, submitted that the petitioner is not entitled to any relief and the petition is liable to be dismissed with costs. 5. During the course of proceedings on 01.08.2019, the Ld. Counsel for the OC submitted that the relief as sought may be granted also for the reason that the CD had responded to its notice dated 04.02.2019 after the period provided in section 8(2) of the Code of 2016. On the other hand, the Ld. Counsel for the CD stressed that the OC was not an operational creditor as per the Code of 2016. A copy of a decision of the Hon ble Mumbai Bench of this Tribunal was placed before us in support of this contention. It was also argued that as there was a dispute, involving an amount of ₹ 60,00,000/- regarding the development of the, for this reason also the application needed to be dismissed. 6. We have heard Mr. D. Gogol, Ld. Counsel for the petitioner and also Mr S.P. Das, Ld. Counsel for the respondent, and have perused the submissions made by them, Let us first take up the main issue raised by the CD, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2017]. While referring to the term goods or services used in the definition of operational debt, the bench observed that it must relate to direct input to the output produced or supplied of the corporate debtor. It also held that any debt arising without nexus to the direct input to the output produced or supplied cannot, in the context of the Code, be considered as an operational debt. Even though it can be a claim amounting to a debt, it cannot be categorized as an operational debt. It finally held that the lease of an immovable property cannot be considered as a supply of goods or rendering of any services and thus, cannot fall within the definition of operational debt . 6.3 More recently, the issue of the meaning of the words Operational Creditor were examined by the Hon ble Mumbai bench of this Tribunal in the case of Citicare Super Speciality Hospital v. Vighnaharta Health Visionaries (P.) Ltd. [CP (IB) No. 567/2018, in its order dated 11-03-2019]. In this case heavy reliance was placed on the earlier decision of the Hon ble Delhi Bench, in the case of Jindal Steel Power Ltd. v. DCM International Ltd. [CP No. (IB) 200/ND/2017, dated 6-10-2017] On simil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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