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TMI Blog2020 (11) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... osition to hold that the rents due could be treated as Operational Debt. Even if the Debt was said to be Operational Debt from the email dated 12th September, 2017 which was sent subsequent to the email dated 18th August, 2017 (at Annexure A-1 (Colly) Diary No. 22971) it is clear that the Corporate Debtor had referred to Financial Stress and terminated the lease which had lock in period. Whether or not the said termination of lease was legal would be an issue of trial between the parties - the findings of the Adjudicating Authority regarding Rent not to be Operational Debt, and that even if looked at in the alternative, there is a pre-existing dispute is upheld. Appeal dismissed. - Company Appeal (AT) (Insolvency) No. 459 of 2020 - - - Dated:- 10-11-2020 - [Justice A.I.S. Cheema] Member (Judicial) And [V.P. Singh] Member (Technical) For the Appellant : Mr. Hitesh Sachar and Ms. Srishti Badhwar, Advocates. For the Respondent : Mr. Akshat Goel, Advocate. JUDGMENT ( A.I.S. Cheema, J. ) Heard Learned Counsel for the parties. 2. Learned Counsel for the Appellant is submitting that the Appellant is landlord who had filed the Application under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han Ors. , another Bench of this Tribunal has in Judgment in the matter of Anup Shushil Dubey Vs. National Agriculture Co-operative Marketing Federation of India Limited Ors. (Company Appeal (AT) (Insolvency) No. 229 of 2020 dated 07.10.2020 held that when the space provided is for commercial purposes, the arrangement has to be treated as services considering the definitions as seen in the Consumer Protection Act and the Central Goods and Services Tax Act, 2017 and the Bench of this Tribunal has also referred to portion of Judgment of Hon ble Supreme Court in Mobilox Innovations Pvt. Ltd Vs. Kirusa Software Pvt. Ltd. (2018) 1 SCC 353. The Learned Counsel has then submitted that on parity, the present appellant should also get relief considering the other view taken by Bench of this Tribunal subsequent to the Judgment in the matter of Mr. M. Ravindranath Reddy Versus Mr G. Kishan Ors. 5. The Learned Counsel for the Respondent is opposing the submissions made by the Learned Counsel for the Appellant and is pointing out the trail email dated 12th September, 2017 which was sent after the email dated 18th August, 2017 (Annexure A1 Diary No. 22971) where the Appellant was in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e property cannot be considered as a supply of goods or rendering of any services and thus, cannot fall within the definition or Operational Debt. 8. As the Learned Counsel for the Appellant has submitted that another Bench of this Tribunal has taken a different view with the assistance of the Learned Counsel for parties we have gone through the said Judgment which is in the matter of Anup Shushil Dubey Vs. National Agriculture Co-operative Marketing Federation of India Limited Ors. (Company Appeal (AT) (Insolvency) No. 229 of 2020). Going through the Judgment, it shows that the Ld. Bench of this Tribunal also referred to the various definitions which are material in Paragraph 12 of the Judgment and then the Tribunal referred to the observations made in Judgment in the matter of Mr. M. Ravindranath Reddy Versus Mr G. Kishan Ors. and discussed Judgment in the matter of Sarla Tantia Vs. Ramaanil Hotels Resorts Pvt. Ltd. in the context of lease and license agreement. In paragraph 17 of the Judgment in the matter of Anup Shushil Dubey Vs. National Agriculture Cooperative Marketing Federation of India Limited Ors. it is observed as under: 17. The Hon ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not appear that the Learned Counsel for parties duly assisted the Hon ble Bench. In paragraph 17 of the Judgment which we have reproduced above, the Hon ble Bench recorded that Hon ble Supreme Court in Mobilox Innovations Private Limited V/s. Kirusa Software Private Limited in paragraph 5.2.1 have observed as per the portion quoted and reproduced by the Hon ble Bench. When with the assistance of Learned Counsel for parties, we have gone through the original Judgment in the matter of Mobilox Innovations Private Limited V/s. Kirusa Software Private Limited as reported in (2018) 1 SCC 353, in Paragraph 22 of the Judgment, the Hon ble Supreme Court was reproducing portions from the final report dated November, 15 of Insolvency Law Reforms Committee and Paragraph 5.2.1 which was part of the report of the Committee was reproduced. Such paragraph 5.2.1 of report of Insolvency Law Reforms Committee has been recorded in Paragraph 17 of the Judgment as if it is observation of the Hon ble Supreme Court in the matter of Anup Shushil Dubey Vs. National Agriculture Co-operative Marketing Federation of India Limited Ors. This is apparently not correct. After referring to the Report, Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econd look at the opinion we arrived at in the Judgment in the matter of Mr. M. Ravindranath Reddy Versus Mr G. Kishan Ors. 14. Yet again, if the definition of Financial Debt is perused Section 5 (8) (d) includes the following as financial debt: (d) the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standard or such other accounting standards as may be prescribed; 15. It is clear that the legislature was conscious regarding liabilities arising from lease but although for particular types of lease, as mentioned in above sub-clause (d), legislature made specific provision to even make it Financial Debt, while dealing with Operational Debt, no such provision has been made. Thus, even on the parameters of interpretation of statutes, we are not in a position to hold that the rents due could be treated as Operational Debt. For reasons recorded in the matter of Mr. M. Ravindranath Reddy Versus Mr G. Kishan Ors., we do not find fault with Impugned Order. 16. Even if the Debt was said to be Operational Debt from the email dated 12th September, 2017 which was sent sub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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