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TMI Blog2022 (2) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... ears can be adjusted, are they adjusted by the date of CIRP is the crucial question, since, after CIRP no adjustment can be made. One indication that no appropriation was done is the claim form submitted by the Respondent to the RP and the admission of the claim by the RP. The correspondence through the mails also shows that there was a demand by the Applicant for refund of the deposit and that he did not express any acquiescence for any appropriation of the deposit towards the rentals - There is no mention made in the said mail that the amount towards the rental dues have been set-off against the deposit. It only states that the person representing the Trust has requested their people to sit with the accounts people of the hospital and get ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 31.01.2020 and which has become due to the Corporate Debtor on 31.05.2020 i.e., when the period under the Lease Deed expired and the premises leased thereunder was vacated by the Corporate Debtor. 2. The Corporate Insolvency Resolution Process (CIRP) was initiated by virtue of order of the NCLT, Hyderabad Bench dated 13.03.2018 in an Application filed by the Axis Bank Limited. The Corporate Debtor is engaged in the business of providing healthcare services and owns two multi-speciality hospitals in Mumbai and Vizag. It also operates a nursing school called Seven Hills School of Nursing for imparting nursing education and on the job training to nursing students. The said school was being run on the premises leased from the Respondent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deposit ought to be reconciled with pending receivables from the Corporate Debtor i.e., INR. 24,26,736/- due to the Respondent, and INR. 24,37,331/- due to the Seven Hills Foundation. 5. That amounts to an admission that Security Deposit INR. 56,92,040/- is lying with the Respondent. The Respondent is trying to avoid returning the Security Deposit to the Corporate Debtor on the pretext of a set-off of alleged dues. Dr. Maganti is also the erstwhile promoter, director and shareholder of the Corporate Debtor, which is aware of the difficult financial situation of the Corporate Debtor. But he has unfairly sought to' withhold the Security Deposit. Hence this application seeking for a direction for return the security deposit to the Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the Security Deposit of INR. 56,92,040/- is lying with the Respondent. The only contention is that the rents which are due to the Respondent by the date of the termination of the lease are already appropriated from the said deposit which are to an extent of ₹ 24,26,736/- and hence the Applicant would be entitled only for the rest of the amount. The Counsel for the Applicant contends that the Respondent is not entitled to appropriate the rental dues from the deposit after the commencement of the CIRP and hence it is liable for return to the Applicant. He also contends that a claim was submitted by the Respondent for the rental dues and the same was admitted by the RP. The said fact is not disputed by the Respondent's cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fy that the rental dues can be adjusted. The facts which are available for appreciation before this Tribunal have to be appreciated in the right perspective for arriving at a conclusion on the right of the Applicant to get refund of the deposit amount. Even if the arrears can be adjusted, are they adjusted by the date of CIRP is the crucial question, since, after CIRP no adjustment can be made. One indication that no appropriation was done is the claim form submitted by the Respondent to the RP and the admission of the claim by the RP. The correspondence through the mails also shows that there was a demand by the Applicant for refund of the deposit and that he did not express any acquiescence for any appropriation of the deposit towards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal (AT) (Ins) No. 530 700 of 2019 wherein it was held that section 14 of the I B, Code will override any other provisions contrary to the same. Any amount due to the Operational Creditor prior to the date of Corporate Insolvency Resolution Process (Admission) cannot be appropriated during the moratorium period. Hence unless it is shown that the said amount was appropriated prior to the CIRP the same cannot be permitted to be done after the commencement of the CIRP. A judgment of the NCLT, New Delhi Bench reported in No. IB-200/ND/2017 between Jindal Steel and Power Limited vs. DCM International Limited, is not considered as relevant since the claim of the Respondent is not made in the form of an Operational Debt. So also the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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