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TMI Blog2022 (2) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court. Hence the petition is not time barred. Further the respondent corporate debtor has admitted its liability to pay the operational debt via reply dated 24.02.2021. The corporate debtor in its reply dated 24.02.2021 admitted the default and further sought time till 01.12.2021 to pay the amount. Since the corporate debtor already admitted its liability to clear its debt which is evident from reply dated 24.02.2021, the present application deserves to be allowed - application allowed - moratorium declared. - IB-595/(ND)/2021 - - - Dated:- 4-2-2022 - Dharminder Singh , Member ( J ) And Sumita Purkayastha , Member ( T ) ORDER Sumita Purkayastha , Member ( T ) 1. This is an application filed under section 9 of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Creditor used to regularly raise Invoices and Debit Notes for the Rent as well as the expenses incurred on the account of the Corporate Debtor. However, the Corporate Debtor was not regular in paying the dues of the Operational Creditor and repeatedly defaulted in the same. d. The operational creditor sent a Demand Notice dated 28.01.2021 demanding payment of an unpaid operational debt of ₹ 1,02,21,098/- (as per provisions under Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 via Speed Post. Copy of the Demand Notice demanding payment in prescribed Form 3 under Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 duly served upon the address ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lease Deed dated 12.06.2017 has been placed on record. e. It is submitted that the petition is barred by limitation whereby the Petitioner claims that the date of default is between 01.07.2017 to 02.03.2018 and thus, the limitation stands expired on 01.03.2021; while the petition was filed on 01.10.2021. f. It is further submitted that the after the Demand Notice (Form-3) dated 28.01.2021, the Respondent had approached the Petitioner and the parties came to a settlement whereby the Respondent was allowed to clear the dues by 01.12.2021. The same is duly recorded in the Reply dated 24.02.2021. 5. In this regard, the applicant has denied the allegations made in the reply of the corporate debtor and further submitted in rejoinde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its primary office and hence, had a direct relation with the operations of the Corporate Debtor. vi. That as regards the issue of sub-leasing, it is submitted that no such issue was ever raised by the Corporate Debtor for the many years it used the Office Premises. In fact, there was no subleasing/licensing and the Office Premises was only given for use by the Corporate Debtor. No issue whatsoever was raised by the landlord or the Corporate Debtor in this regard. vii. That it is settled law that the 'dispute' under IBC must be preexisting i.e. it must exist prior to issuance of the demand notice. In the present case, it was not even raised in the Reply to the Demand Notice under Section 8 and is for the first time, being allege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 24.02.2021. The corporate debtor in its reply dated 24.02.2021 admitted the default and further sought time till 01.12.2021 to pay the amount. 9. Furthermore with regard to the argument of the respondent that the claim of the applicant not a operational debt- It is clear that the lease of the office space is commercial, wherein the NCLAT in this matter Anup Sushil Dubey vs. National Agricultural Co-operative Marketing Federation of Indian Limited Ors observed that: lessor that the entity rents out space from is an operational creditor to whom the entity owes monthly rent on a three-year lease,' and thus held that lease rentals arising out of use and occupation of a cold storage unit which is for commercial purpose will q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tors, as accounted for by Interim Resolution Professional, and shall be paid back to the Operational Creditor. 13. As a consequence of the application being admitted in terms of Section 9(5) of IBC, 2016, moratorium as envisaged under the provisions of Section 14(1), shall follow in relation to the corporate debtor, prohibiting as per proviso (a) to (d) of the Code. However, during the pendency of the moratorium period, terms of Section 14(2) to 14(4) of the Code shall come in force. 14. A copy of the order shall be communicated to the applicant, Corporate Debtor and IRP above named, by the Registry. In addition, a copy of the order shall also be forwarded to IBBI for its records. Applicant is also directed to provide a copy of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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