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TMI Blog2021 (10) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... o entailed a revision of the monthly Business Conducting Fee from the pre-existing 10% of the Gross Revenue (as per Schedule B to the BCA dated 29.04.2010 r/w Clause 12 thereof) to 11% thereof. It is also admitted fact that the Respondent No. 1 is supporting the case of the Appellant. It is also fact that the Appellant had not made party as Respondent Nos. 2 and 3 before this Tribunal when the Appeal was filed. Vide order dated 12.01.2021 passed by this Tribunal the Appellant made party as Respondent Nos. 2 and 3 and they opposed the submissions of the Appellant - there is pre-existing dispute between the parties and two cases also pending one is before the Hon ble Bombay High Court and other is before the Court of Small Causes Bandra. The Ld. Adjudicating Authority rightly come to the conclusion that total amount of 14,62,205/- (Municipal Taxes) which is claimed by the Appellant from period 2010 to 2017 and the Petition under Section 9 of the IBC was filed on 12.03.2018, so all claims prior to 12.03.2015 are time barred. There is no merit in the instant Appeal - the Appeal is hereby dismissed. - Company Appeal (AT) (Insolvency) No. 951 of 2020 - - - Dated:- 30-9-2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed by two Supplemental Agreements dated 30.04.2010 (at page 83 to 97 of the Appeal Paper Book). vi) The said Business Conducting Agreement was initially envisaged to be operative for a period of 5 years. However, subsequently, it was extended for another 2 years, expiring on 30.09.2017 vide Clause 2 of the Supplemental Agreement -1 dated 30.04.2010. The said extension also entailed a revision of the monthly Business Conducting Fee from the pre-existing 10% of the Gross Revenue (as per Schedule B to the BCA dated 29.04.2010 r/w Clause 12 thereof) to 11% thereof. vii) That as per Clause 3 of the Supplemental Agreement -1 provided for a minimum monthly conducting fee, subject to yearly revisions, as provided therein. As per the said clause, the minimum monthly conducting fee payable by the Respondent to the Defendant from 01.10.2015 to 30.09.2017 was ₹ 8,00,000/-. Clause 5 (j) of the BCA dated 29.04.2019, read with Clause 7 (a) thereof provided that the Respondent was to reimburse the Appellant, within 7 days of a demand made by the Appellant via a proper invoice, electricity charges, telephone charges or any other charges on account additional electricity or gas suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duals of the Pereira family in their personal capacity, seeking tenancy rights in the Business Premises, the Court passed an order confirmed that the Respondent was in fact running a business under the BCA with the Appellant. xiv) That on 08.11.2017 and 24.11.2017, the Appellant again wrote letters to the Respondent No. 1 Company calling upon it to clear the outstanding amount to the tune of ₹ 35,52,022/-. However, no response from the Respondent No. 1. xv) That on 15.12.2017, in Commercial Suit No. 187 of 2018 filed by the three individuals of the Pereira family, namely Mr. Craig Pereira, Mrs. Leonys Pereira and Mr. Anslem Pereira under Section 6 of the Specific Relief Act, 1963 seeking possession of the Business Premises, the Hon ble Bombay High Court granted Status Quo. xvi) Further case is that finally, with no sight of any repayment from the Respondent Company, the Appellant on 19.02.2018 sent a Demand Notice under Section 8 of the Insolvency and Bankruptcy Code, 2016 (for short IBC) as prescribed under Form 3, calling upon the Respondent to clear the outstanding amount of ₹ 35,52,022/-. xvii) That on 01.03.2018 a purported Reply to the aforesaid Demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Electricity Bill for the month of September 2017 1,64,730.00 Page No. 68 of the Appeal Memo. 4. Water Bill for the month of August and September 2017 37,087.00 Page No. 68 of the Appeal Memo. Total 35,52,022.00 4. It is further submitted that the entire claim of ₹ 35,52,022/- is based on the Business Conducting Agreement dated 29.04.2010 (at page 65 to 82 of the Appeal Paper Book) which is signed by Directors of both the parties. Thereafter, parties executed First Supplemental Agreement which is duly singed by Directors of both the parties 9page 88 of the Appeal Paper Book). The 2nd Supplement Agreement dated 30th April, 2010 was signed by Directors of both the parties (at page 95 of the Appeal Paper Book). 5. It is further submitted that so far Municipal Taxes is concerned, referred to page 94 of the Appeal Paper Book in Clause 3 deals with the Municipal Taxes, charges, cesses, levies, fees, dues or other duties payable to the Municipal Corporation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her two directors i.e. Mrs. Leonys Pereira and Craig Pereira to further their personal interest in the premises, are refusing to sanction payment and without sanction the Company is not authorized to release any payment. Accordingly, the said payment remains outstanding. 6. I say that there are several issues of Oppression and mis-management in the Corporate Debtor, in that the two directors Leonys Pereira and Craig Pereira have no interest in running this Company except to further their personal interest in the premises. 10. It is further submitted that the Ld. Adjudicating authority has failed to consider the averments made in paragraph 5 of the aforesaid affidavit where the Respondent No. 1 accepted the outstanding debt for 2 months as claimed by the Operational Creditor is not paid because the other two Directors i.e. Respondent No. 2 - Mrs. Leonys Pereira and Respondent No. 3 Mr. Craig Pereira to further their personal interest in the premises, are refusing to sanction payment and without sanction the Company is not authorized to release any payment. So, based on these submissions the impugned order is fit to be set aside. Submissions on behalf of the Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 3. After hearing the parties, this Appellant Tribunal allowed the I.A. No. 3026 of 2020 vide order dated 12.01.2021 and they were added party as Respondent Nos. 2 and 3. 17. The Learned Counsel for the Respondent Nos. 2 and 3 appeared and filed their Reply Affidavit and also Written Submissions and during the course of argument submits that Business Conducting Agreement / service entered between the Appellant and Respondent No. 1 where the Respondent Nos. 2 and 3 have been Directors. The alleged debt on account of Municipal Tax or rent does not fall within the definition under Section 5(21) of the IBC. The Section 5(21) of the IBC reads as under: 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; 18. It is further submitted that the agreement dated 30.04.2010 under which the Appellant is claiming that there is an agreement for operating a business, the existence and binding nature of which is itself a subject matter of pre-existing d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low knows as Pioneer House, situated at 9, St. John Baptist Road, Bandra, Mumbai. The Appellant entered into a Business Conduction Agreement with the Respondent No. 1 (Corporate Debtor) on 29.04.2010 (at page 65 to 82 of the Appeal Paper Book) which was followed by two Supplemental Agreements dated 30.04.2010 (at page 83 to 97 of the Appeal Paper Book). Business Conducting Agreement was initially envisaged to be operative for a period of 5 years. However, subsequently, it was extended for another 2 years, expiring on 30.09.2017 vide Clause 2 of the Supplemental Agreement -1 dated 30.04.2010. It is also admitted fact that as per the terms of the Supplemental Agreement, extension also entailed a revision of the monthly Business Conducting Fee from the pre-existing 10% of the Gross Revenue (as per Schedule B to the BCA dated 29.04.2010 r/w Clause 12 thereof) to 11% thereof. It is also admitted fact in 2016, the Appellant Company had indicated that it did not wish to extend or renew the BCA beyond the expiration dated 30.09.2017. It is also admitted fact that prior to expiry of BCA the Respondent Nos. 2 and 3 along with Anslem Pereira, filed R.A.D. Suit No. 348 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20714 361282 1,70,284 01.04.2014 to 31.03.2015 20714 361282 1,70,284 01.04.2015 to 31.03.2016 20714 483272 2,31,279 01.04.2016 to 31.03.2017 20714 483270 2,31,278 01.04.2017 to 30.09.2017 10357 241635 1,15,639 Total 14,62,205 It is also admitted fact that the Respondent No. 1 is supporting the case of the Appellant. It is also fact that the Appellant had not made party as Respondent Nos. 2 and 3 before this Tribunal when the Appeal was filed. Vide order dated 12.01.2021 passed by this Tribunal the Appellant made party as Respondent Nos. 2 and 3 and they opposed the submissions of the Appellant. Thus, viewed from all angle, we are of the view that there is pre-existing dispute between the parties and two cases also pending one is before the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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