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TMI Blog2022 (1) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the Applicants in the present case cannot be made to run from pillar to post to recover their legitimate dues which has been incurred during the CIRP period. In the present case, the RP has admitted that there are certain sum which are required to be paid to the Applicants, however relies upon the Judgment of this Tribunal passed In V. KARUPPIAH, K.R. POOMANI VERSUS V. MAHESH RESOLUTION PROFESSIONAL OF M/S. VASAN HEALTH CARE PRIVATE LIMITED [ 2021 (4) TMI 1305 - NATIONAL COMPANY LAW TRIBUNAL CHENNAI] to state that the said amount would be paid in priority when a Resolution Plan is approved or when the Corporate Debtor is ordered for liquidation. The order passed by this Tribunal n the said case is required to be discerned with the case of the Hon ble NCLAT in the matter of Prerna Singh [ 2021 (12) TMI 742 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI ], wherein it was categorically held that the right of lessor to recover rent is affected on account of moratorium and therefore the lessor is entitled to recover the rent and which shall Include in CIRP costs. The 2 nd Respondent is directed to pay to the Applicants a sum of ₹ 1,17,28,1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Hon ble High Court of Madras on 05.09.2019. Thereafter, the CIRP of the Corporate Debtor was revived on 03.10.2019 and pursuant to the same, the Respondent has caused public announcement on 04.10.2019. 3. The Learned Counsel for the Applicants submitted that they are the absolute joint owners and Landlord of the premises situated at No.28-29, 7 th Main, Diaganal Road, 4th Block, Jayanagar, Bangalore and the Corporate Debtor s n the business of operating eye and dental care clinics and had approached the Applicants seeking to take on lease the property of the Applicants for running its eye hospital and accordingly a lease deed was entered into by the parties on 28.02.2011 which was further amended on 07.02.2017. 4. The Learned Counsel for the Applicant submitted that as per the amended Lease Deed, the Corporate Debtor ought to have made payment of monthly rent in the following manner; a. From 1 st February 2017 to 31 st January 2018 - ₹ 6,00,000/- per month b. From 1 st February 2018 to 31 st January 2019 - ₹ 8,00,000/- per month c. The rent shall be increased by 5% over the last paid rent once every year, after 31.01.2019 5. Further, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 2020 ii. NIL Rent for April 2020; iii. 25% of rent shall be paid in May 2020; iv. 75% of the rent shall be paid in June and July 2020; and v. 100% shall be paid from August 2020 onwards 9. The Learned Counsel for the Applicants submitted that they have fully agreed to the aforesaid suggestions of the 1st Respondent IRP and had duly replied to the same vide letter dated 12.02.2021 and also provided their consent to the Rental Arrangements stipulated therein. It was submitted that even as per the suggestions proposed by the 1 st Respondent to the Applicants, the 1 st Respondent ought to have made payments to the Applicants for the month from October 2019 till May 2021 to the tune of ₹ 1,36,66,667/- + GST, however, it was submitted that inspite of repeated reminders there was no payment made by the 1 st Respondent to the Applicants. 10. In the meantime, the Resolution Professional in respect of the Corporate Debtor was replaced by the 2 nd Respondent in its 11 th CoC meeting. It is the apprehension of the Applicants that the RP may include the assets owned by the Applicants herein in the potential Resolution Plan. Further, it was also submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,66,667/- is not correct and the Applicants seem to have not deducted the payments received by them for the CIRP period. Further, it was submitted by the Learned Counsel for the 2 nd Respondent that the 100% rent for the month of July 2021 was paid to the Applicants on 02.08.2021 and the same has been acknowledged by the Applicants. 16. The 2 nd Respondent has placed reliance upon the decision of this Tribunal in K. Karuppaiah Anr. -Vs- V. Mahesh in IA/880/IB/2020 vide order dated 13.04.2021 to highlight that the arrears due and payable by the Corporate Debtor to the Applicants cannot be paid during the moratorium, however the said cost would form part of the CIRP costs and would be paid in priority when a Resolution Plan is approved or when the Corporate Debtor is ordered for liquidation. 17. The Applicants have filed rejoinder and it has been stated that the orders passed by this Tribunal n K. Karuppaiah (supra) would not bind the Applicants in the present case and t was contended that the amount due to the Applicants form part of the CIRP costs by virtue of the same, they are qualified to be an essential service and as such the rental dues to the Applicants are req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lvency resolution process costs under Section 5(13)(e) shall mean- (a) amounts due to suppliers of essential goods and services under Regulation 32; (b) amounts due to a person whose rights are prejudicially affected on account of the moratorium imposed under section 14(1)(d); (c) expenses incurred on or by the interim resolution professional to the extent ratified under Regulation 33; (d) expenses incurred on or by the resolution professional fixed under Regulation 34; and (e) other costs directly relating to the corporate insolvency resolution process and approved by the committee. 20. As per Regulation 31 Insolvency Resolution Process costs under Section 5(13) (e) mean defined n clause (a) to (e). for the present case, Regulation 31 (b) is relevant which provides that amounts due to a person whose rights are prejudicially affected on account of the moratorium imposed under Section 14(1) (d). Due to moratorium period the lessor could not recover the possession of the property from the Corporate Debtor. Thus, the right of lessor to recover rent are affected on account of moratorium. Therefore, the lessor is entitled to recover the rent and which shall incl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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