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TMI Blog2020 (10) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... t such goods or services has direct relationship to input-output operations of the Corporate Debtor and hence disentitles such a person from maintaining an application for CIRP against the corporate debtor as an Operational Creditor. There seems to be some rationale in restricting only to Operational Creditors for Initiating a CIRP against a Corporate Debtor other than a Financial Creditor, Default committed to operational creditors in relation to payment of their debt definitely connotes that the Corporate Debtor is not even in a position to service their dues and run the day to day operations of the Corporate Debtor which is a clear pointer to its commercial insolvency warranting the process of insolvency being initiated and restructuring process being put in place. This Tribunal is refraining from going into the aspect where the immovable property in itself constitutes stock-in-trade of the corporate person and has a direct nexus to its input-output and being an integral part of the operation, In the instant case no such specific pleading to support such a contention has been placed on record by the petitioner, In fact even the Memorandum and Articles of Association of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies Act, 1956 on 04.08.2006, duly registered with Registrar of Companies, Jaipur with CIN: U80302RJ2006PTC022906 and the Registered Office of the Respondent is at 102-103, Gopalpura Bypass, near Trivani Nagar Chouraha, Jaipur (302018). The Respondent/Corporate Debtor is in the business of running an education institution. 4. The counsel for the Applicant states that the Respondent had executed a License Agreement dated 15.04.2017 with the Applicant. It was agreed between the parties that the Respondent would use the Applicant's land situated at SP-10, Sitapura Industrial Area, Phase 4 Jaipur -302022, for the term of 5 years from 01.06.2017 to 31.05.2022, for the purpose of running an educational establishment. The Respondent had agreed to pay monthly license fee of ₹ 4,00,000/- in advance on or before 7th day of each month. The minimum lock-in of the said agreement was of 24 months. At the time of execution of the said agreement, the Respondent made an initial payment of ₹ 8,00,000/- as security deposit and thereafter had made a payment of ₹ 5,00,000/- each on 08.11.2017 and 22.11.2017 towards license fee. 5. It is submitted by the Applicant that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the claim of the Applicant is based on licensee fee and not in respect of any goods or services and thus the claim of the Applicant does not fall within the definition of Operational Debt as defined under Section 5(21) of the IBC, 2016. The Respondent submits that it had issued legal notice dated 23.04.2019 to the Applicant to perform his obligation as agreed while executing the license agreement. The Respondent had also filed injunction application on 09.05.2019 under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, 1998 against the Applicant before CJM, Court-26, Sanganer registered at 144/2019 in regard to the subject matter in the present application and the Applicant had also filed reply in the said injunction suit. The Respondent further submits that it has lodged FIR bearing No. 737/2019 against the Applicant for which investigation is pending till date. Thus, it is submitted by Respondent that there is a pre-existence of dispute. 9. It is also submitted by the Respondent that the alleged cheques were issued for the purpose of security deposit and on the assurance of the Applicant to complete the repair installation work in the licensed prem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nction regarding eviction and has no bearing on the present proceeding as the claim of license fee is neither raised nor dealt with by the Sanganer Court. Therefore, the said order has no bearing on the present proceeding. 14. The Applicant has filed written arguments and stated that as per clause 1c of the License Agreement, the Respondent has no claim against the Applicant and any or all complaints with respect to the demised property under the Licence Agreement have been sorted out before signing of the Agreement. The Applicant further states that the Applicant is a service provider as against a specified Licence Fee as it provides permission to the respondent to use a portion of its premises only for the purposes of an educational establishment. The Applicant relied the on the judgment of the Hon'ble Supreme Court in the case of Mobilox Innovations Pvt. Ltd. V/s Kirusa Software (P) Ltd. reported in (2018) 1 SCC 353, wherein the Hon'ble Supreme Court extracted Paragraph 5.2.2 of the Report of the Bankruptcy Law Reforms Committee, which is reproduced as follows: Operational creditors are those whose liability from the entity comes from a transaction on operations. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the parties. 17. The Respondent has also filed its arguments and submits that the Hon'ble Supreme Court in the matter of Mobilox Innovations Private Ltd. versus Kirusa Software Pvt. Ltd. (supra) had only reproduced the report of the Committee with respect to the arrears of rent in nature of operational creditor and not recorded any observation/finding on it. 18. The Respondent has relied on the following orders in support of his contention that the non- payment of licence fee does not fall within the purview of Section 5(21) of the Code: a. The order of Hon'ble National Company Law Appellant Tribunal in the matter of Jindal Steel Power Ltd. versus DCM International Ltd. in CA (AT) (Insolvency) No. 288 of 2017, dated 28.11.2017. b. The order of Hon'ble National Company Law Tribunal, New Delhi Bench in the matter of Mrs. Parmod Yadav and Ors. versus Divine Injracon (P.) Ltd. in IB No. 209/ND/2017, dated 28.09.2017. c The order of Hon'ble National Company Law Tribunal, Guwahati Bench in the matter of Aurora Accessories (P.) Ltd. Versus Ace Acoustics Audio Video Solutions (P.) Ltd, in CP (IB) No. 15/GB/2019, dated 09.08.2019. d. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is owed and includes a financial creditor, an operational creditor, a secured creditor, an unsecured creditor and a decree holder; Section 5(20) operational creditor means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred; Section 5(21) operational debt means a claim in respect of the provision of goods or services including employment or a debt in respect of the payment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority; The above definition was amended with effect from 06.06.2018 to substitute the word 'payment' in place of 'repayment'. 22. Further in the matter of Mrs. Pramod Yadav V/s Divine Infracon Private Limited (supra), the National Company Law Tribunal, New Delhi Bench has held in detail as follows (the effect of amendments in definitions with effect from 06.08.2018, as stated hereinbefore, has to be appropriately construed): Thus, for an amount to be classified as an operational debt under IBC, 2016 a sort of filtration process is provided: Firstly, the amount should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch specific pleading to support such a contention has been placed on record by the petitioner, In fact even the Memorandum and Articles of Association of the Corporate Debtor has not been filed from which atleast the object for which the Corporate Debtor has been incorporated can be gathered, Thus, this Tribunal is of the view that lease of 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'. 23. Also, in the matter of Jindal Steel and Power Limited Vs. DCM International Limited, (supra) passed by National Company Law Tribunal, New Delhi Bench and upheld by NCLAT, New Delhi it was held as follows: in relation to transaction of immovable property the same cannot be considered as a transaction falling under the term 'operation' and 'Operational Debt' unless such a transaction having a correlation of direct input to the output produced or supplied by the Corporate Debtor and hence we do not have any hesitation looking at any way in holding that the petitioner will not fall under the definition of Operational Creditor and the claim which is sought to be made can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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