9911796707
TMI Blog2021 (10) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that the Company Petition is not maintainable before this Tribunal and is liable to be dismissed. 2. The facts giving rise to the instant Appeal is as under: i) That the Appellant (herein) - 'Crown Tobacco Company Pvt. Ltd.' is a private limited company incorporated under the Companies Act, 1956, having its registered address at Everest, 56 Chapel Road, Bandra West, Mumbai. ii) The Appellant was in possession of a valid Restaurant, Bar, Bakery and Eating House licenses from the ground and first floor premises of a bungalow knows as Pioneer House, situated at 9, St. John Baptist Road, Bandra, Mumbai, but the Appellant company was not in a position to exploit the full potential of the licenses inter alia on account of being involved in other businesses and also for want of modern skills required for running a Restaurant and Lounge Bar. iii) Further case is that the Respondent No. 1 (Corporate Debtor) - Crale Foodlinks Pvt. Ltd. is also a private limited company, incorporated under the Companies Act, 1956, having its registered address at 301/3rd Floor, Safal Pride, Sion Trombay Road, Deonar, Mumbai, Maharashtra 400088. iv) The Respondent No. 1 had the requisite expertise and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expiry of the BCA, they, along with Anslem Pereira, filed R.A.D. Suit No. 348 of 2017 before the Court of Small Causes Bandra, claiming tenancy rights in the business premises, despite being fully aware that the Original Owners of the Business Premises had entered into a Leave and License Agreement with the Appellant, and that the Appellant had in turn entered into a Business Conducting Agreement with the Respondent. x) That on 05.09.2017, the Appellant raised Invoice No. CTC/17-18/06 on the Respondent No. 1 for an amount of Rs. 9,44,000/- (including GST) being the Business Conducting Fee for the month of August, 2017. xi) Further case is that on 30.09.2017, the BCA expired by efflux of time, and since the Appellant was not interested in continuing with the business arrangement any longer, the Respondent Company vacated the possession of the business premises. However, the Monthly Conducting Fee and the utility bills (electricity, water etc.) for the month of August and September remained unpaid. Further, Municipal Assessment Taxes from June, 2010 to September, 2017 had also not been paid. xii) That on 01.10.2017, the Appellant sent a letter to the Respondent No. 1 Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant, we are not dealing with each and every contention raised by the respondents. In view of the above observations, we are of the considered opinion that the above Company Petitions not maintainable before this Tribunal and is liable to be dismissed. Accordingly, the above Company Petition is dismissed without costs and pending IA's if any also stands disposed off. However, this order does not preclude the petitioners from instituting necessary recovery proceedings against the Corporate Debtor for recovery of their dues in respect of the claims that are within limitation." Hence this Appeal. Submissions on behalf of the Appellant 3. The Learned Counsel for the Appellant during the course of argument, also in memo of Appeal and his Written Submissions submitted that the Ld. Adjudicating Authority has failed to consider the particulars of claim of 'Crown Tabacco Company Pvt. Ltd' (at page 171 of the Appeal Paper Book). The outstanding debt falls under the following four heads: Sr. No. Particulars Amount (INR) Reference under the Business Conducting Agreement 1. Refund of Municipal Taxes 14,62,205.00 Page No. 94, Para No. 3 of the Appeal Memo. 2. Conducting fees for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mily business in predominantly of furniture and furnishings. I have been doing business of catering and restaurant since 1997 under names of "China Bistro", "Star Parade", "Oasis" etc. and catering business under the name of "Food-Link"." 9. Learned Counsel for the Appellant further referred to page 208 of the Appeal Paper Book which is Reply Affidavit of the Corporate Debtor filed before the NCLT, Mumbai Bench, wherein paragraphs 4, 5 and 6 read as hereunder: " 4. I say that it is matter of record that the Corporate Debtor paid conducting fees to the Operational Creditor as agreed under the Business Conducting Agreement dated 29th April 2010 and the said fees were paid only until 31st July 2017. The conducting fees and water bills for August and September 2017 were not paid and the electricity bill for September 2017 was not paid. Also, the property tax from 1.6.2010 to 30.09.2017 were not paid. 5. I say that the Corporate Debtor has paid its dues. However, the outstanding debt for 2 months as claimed by the Operational Creditor is not paid because the other two directors i.e. Mrs. Leonys Pereira and Craig Pereira to further their personal interest in the premises, are refusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smanagement under Section 241 read with Section 242, 244 and other applicable provisions of the Companies Act, 2013. 14. It is further submitted that the Mr. Sanjay Manohar Vazirani, Director of the Corporate Debtor - Respondent No. 1 filed Company Petition No. 3783 of 2018 against two Directors i.e. Respondent No. 2 and Respondent No. 3 herein for oppression and mismanagement under Section 242 read with Section 242, 244 and other applicable provisions of the Companies Act, 2013. Both the Petitions i.e. Company Petition No. 2355 of 2018 and Company Petition No. 3783 of 2018 are pending. 15. It is further submitted that Mr. Sanjay Manohar Vazirani, Director, has been left all the way alone to shift the Assets of the Corporate Debtor after the expiry of the Business Conducting Agreement terms. Submissions on behalf of the Respondent Nos. 2 and 3 16. From the perusal of the record it appears that I.A. No. 3026 of 2020 has been filed for impleadment of applicants Mr. Leonys Pereira and Mr. Craig Pereira as party Respondent Nos. 2 and 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 Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proved by the issuance of notice under Section 106 of the TP Act, much before the issuance of demand notice, under Section 8 of the I&B Code. Based on the above, the application filed under Section 9 of the I&B Code could not have been admitted. We are of the considered opinion that the alleged debt on account of purported enhanced rent of leasehold property does not fall within the definition of the operational debt in terms of Section 5(21) of the Code. On the above basis, it is clear that appeal deserves to be allowed." 21. It is further submitted that based on these submissions there is no merit in the Appeal, the Appeal is fit to be dismissed. FINDINGS 22. After hearing the parties and going through the pleadings as also Written Submissions, we are of the considered view that the following facts are admitted in the instant Appeal. The Appellant is an Operational Creditor who had valid Restaurant, Bar, Bakery and Eating House licenses from the ground and first floor premises of a bungalow 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us Quo. It is also fact that the Appellant (Operational Creditor) claimed an amount of Rs. 14,62,205/- towards Municipal Taxes covering the following period against the total claim of Rs. 35,52,022/- which is hereunder: Property Tax Payable by Crale Foodlink Pvt. Ltd. From 2010 to 2017 Period Old Rate Revised 50% of increased taxes 01.06.2010 to 30.09.2010 5178 122297 58,560 01.10.2010 to 31.03.2011 10357 245095 1,17,369 01.04.2011 to 31.03.2012 20714 415170 1,97,228 01.04.2012 to 31.03.2013 20714 361282 1,70,284 01.04.2013 to 31.03.2014 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 Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
