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TMI Blog2021 (1) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate Debtor - HELD THAT:- It is clear from the facts of the case and undisputed by the Respondents that they have repeatedly prevented the Applicant from accessing and removing the assets and records of the Corporate Debtor located at the office premises of the respondent company. This action on the part of the Respondents is not correct as there is no provision of law which entitles the Respondents to hold on to the assets and records of the Company and to prevent the Applicant from accessing and removing the same. Rather it is contravening the provisions of the Code which empowers the RP to take into possession all the assets of the Corporate Debtor. It is believed that the Respondents are seeking several directions against the RP vide their reply filed in this application which itself is filed by the RP seeking recourse against the land lords. If they had grievances against the RP, they should have filed appropriate proceedings against the RP either before this Tribunal or before any other competent authority to seek redressal of their grievances. But they have not filed any application in any court of law to prevent the Applicant from accessing and removing the assets an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s coterminous with the Lease Deed. 3. Section 7 petition was filed by Rattan India Finance Limited (Financial Creditor) before this Tribunal which was admitted vide an order dated 22.10.2019 of this Tribunal whereby the Corporate Insolvency Resolution Process against the Corporate Debtor was initiated. Mr. Alok Kumar Agarwal was appointed as the Interim Resolution Professional (IRP) of the Corporate Debtor who was later on replaced by the applicant herein as the Resolution Professional of the Company vide an order dated 10.01.2020 of this Tribunal. 4. Subsequent to his appointment as the RP, the applicant on 13.02.2020 issues a Termination Notice to the Respondent No. 01 terminating the Lease Deed and the Maintenance Agreement in terms of Clause 13.4 of the Lease Deed. In terms of the notice period prescribed in the Lease Deed, the Lease Deed and the Maintenance Agreement were to stand terminated on 12.05.2020. 5. Vide a letter dated 18.02.2020, the Respondent No. 01 agreed that the Lease Deed would expire on 12.05.2020 in terms of Clause 13.4 of the Lease Deed. Respondent No. 01 also acknowledged the receipt of the termination Notice and conveyed its acceptance of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt assets of the Company. Again on 08.07.2020 the packers and movers were not permitted to enter into the premises, thereby thwarting the Company s attempt to vacate the premises. 8. The applicant submitted that the Respondents have filed Claim Forms with the Applicant where they have not claimed any credit for the Security Deposit of approximately ₹ 2.32 Crore falsely alleged to have been appropriated by them. Therefore, the Respondents own Claim Form belies their argument that the Security Deposit of approximately ₹ 2.32 Crore has been appropriated by them. The remedy available to the Respondents to challenge the admission of their Claim Forms by the Applicant is to file an application under the appropriate section of the Insolvency bankruptcy Code, 2016 before this Tribunal. However, the Respondents have not exercised this remedy and have not filed any application to challenge the admission of the Respondents Claim Form by the Applicant. 9. The applicant has sought the following prayers in this application: i. Pass an order directing the Respondents to cooperate with the Applicant and to not restrain the Company and the Applicant from accessing, dealing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Corporate Debtor s manpower to the Demised Premises is admittedly not denied in the Corporate Debtor s email dated 12.06.2020, issued in response to the Respondent s email dated 03.06.2020. Hence, if the email dated 23.05.2020 and 02.06.2020 are read together, it would be transpired that the allegations in email dated 02.06.2020 are just contrary to the averments in the email dated 23.05.2020 and such allegations are motivated as the Applicant despite being in possession of the property was not making payment of rent and maintenance despite repeated assurances. 12. The counsel for the Respondents also stated that the applicant has admitted the payment of rent and maintenance charges until 15.09.2020 and placed before the CoC under the head As per Resolution Professional and therefore, there is no dispute with regard to the rent and maintenance charge payable in terms of the agreements executed between the Corporate Debtor and the Respondents. He mentioned that the only dispute is with regard to whether the Respondents are entitled to adjust the default amount prior to commencement of CIRP from the Security Deposit already paid and available with the Respondents as se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract . It ought to be kept in mind that Court cannot do charity at the cost of others. Charity beyond law is an injustice to others. If the landlord is entitled to receive the rent/consideration in accordance with law as per the contractual agreement entered between the parties concerned, then, the Court cannot, by a general order of the nature sought by the petitioner, waive such amount 9. The petition proceeds on the presumption that tenants alone are suffering from financial hardship, or from the economic consequences of the pandemic and consequent lockdown. However, it ought to be kept in mind that even the landlords can be financially dependent on the rent 15. The counsel for the respondents further stated that the applicant like the petitioner in the abovementioned Writ Petition before the Hon ble High Court seeks to portray before this Tribunal that it is only the Corporate Debtor who is affected by the repercussions of Covid -19 but it is to be taken into consideration that the amount received from the Corporate Debtor by the Respondent No. 01 towards the rent charges is only utilised for making repayments towards the loans taken by the Respondent No. 01 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssets and records of the Company and to prevent the Applicant from accessing and removing the same. Rather it is contravening the provisions of the Code which empowers the RP to take into possession all the assets of the Corporate Debtor. 18. Furthermore, we believe that the Respondents are seeking several directions against the RP vide their reply filed in this application which itself is filed by the RP seeking recourse against the land lords. If they had grievances against the RP, they should have filed appropriate proceedings against the RP either before this Tribunal or before any other competent authority to seek redressal of their grievances. But they have not filed any application in any court of law to prevent the Applicant from accessing and removing the assets and records of the Company from the office premises rather they left it as it is so as to continue the increase of rent on the Corporate Debtor for the reasons best known to them. 19. While deciding on this application, it is important to check whether the lease which is in question here comes within the purview of the term Operational Debt . The term Operational Debt is defined under Section 5(21) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t which is for Commercial Purpose is an Operational Debt as envisaged under Section 5 (21) of the Code. Further, in so far as the facts and attendant circumstances of the instant case on hand is concerned, the dues claimed by the First Respondent in the subject matter and issue, squarely falls within the ambit of the definition of Operational Debt as defined under Section 5 (21) of the Code. Also, the Hon ble Supreme Court of India in the matter of Mobilox Innovations Private Limited V/s. Kirusa Software Private Limited (2018) 1 SCC 353 in Para 5.2.1 has observed as hereunder; 5.2.1 Who can trigger IRP? Here, the code differentiates between financial creditors and operational creditors. Financial creditors are those whose relationship with the entity is a pure financial contract, such as a loan or a debt security. Operational creditors are those whose liability from the entity comes from a transaction on operations. Thus, the wholesale vendor of spare parts whose spark plugs are kept in inventory by the car mechanic and who gets paid only after the spark plugs are sold is an operational creditor. Similarly, the lessor that the entity rents out space from is an operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate Debtor during that period and the Respondents are therefore, entitled to be paid. Not doing so will cause prejudice to the rights of the Respondents for no fault of theirs. Therefore, the Respondents are directed to file their claim before the RP for the unpaid rent from 25.03.2020 to 28.07.2020 and not beyond that. Delay if any in filing the claim of the Respondents stands condoned. We direct the above because the RP is bound by the provisions of the Code and thus is not allowed to give preferential treatment over the other claimants. The RP has to collate the claim and then prepare a list as per the criteria under Section 53 of the Code. 22. We also direct that the Termination Notice dated 13.02.2020 to terminate the Lease Deed and Maintenance Agreement is valid and effective from 15.09.2020. After careful perusal of the Agreement entered into between the parties and also from the facts of the case it is understood that if the Respondents opt to withhold the security deposit, they will have to forego the rent of the extended period and therefore, we believe that the Respondents cannot/should not withhold the security deposit and hereby are directed to refund the same wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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