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TMI Blog2022 (3) TMI 1220X X X X Extracts X X X X X X X X Extracts X X X X ..... orium declared. - C. P. (IB) No. 154/KB/2019 - - - Dated:- 21-3-2022 - Rohit Kapoor , Member ( J ) And Harish Chander Suri , Member ( T ) For the Appellant : Sinthia Bala , Adv. ORDER Harish Chander Suri , Member ( T ) 1. The Court is convened by video conference today. 2. This petition under 9 of the Insolvency and Bankruptcy Code, 2016 read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 has been filed by Bhuwalka Mercantile LLP, absolute owner of immovable property of assessee Holding 0.4(7), S.N. Banerjee Road, situated at 4(2), admeasuring 1500 sq.ft., having its registered office at S-204 Ideal Plaza, 11/1, Sarat Bose Road, 2nd Floor, Kolkata-700020, (hereinafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Operational Creditor and the Corporate Debtor which is called Amenities Agreement, the said Corporate Debtor agreed to pay monthly consideration of ₹ 60,000/- to the Operational Creditor for maintenance and up-keeping etc. of the said premises for the aforesaid period. The rent was further agreed to be enhanced by 20% after three years from the date of execution of the agreement. It is submitted that the Corporate Debtor is in possession of the said premises and had accepted the bills raised for rent and amenities provided to them. The Corporate Debtor had paid monthly rent and consideration on account of amenities up to December, 2017, and thereafter defaulted in making payment of dues on account of rent and amenities from Janu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perational Creditor as and when funds come in their account from the Government of India, not later than 31st day of March, 2020. It is stated that despite being well aware of such facts and having agreed to a mutual settlement, the Operational Creditor filed the said petition with mala fide intention. 9. It is mentioned in the reply affidavit that the petition is not maintainable as the Bhuwalka Mercantile LLP is not an Operational Creditor within the meaning of section 5(20) of the Insolvency and Bankruptcy Code, 2016. It is further submitted that there is lease agreement and Amenities agreement between the parties and as such unpaid rent and amenities do not constitute operational debt within the meaning of section 5(21) of the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute, because if there had been any dispute, the Corporate Debtor would have replied to the said notice. It is submitted that the Hon'ble Supreme Court has laid down that the rent receivable is an operational debt. It is submitted that the Corporate Debtor has already admitted its liability to pay the amount due and payable to the Operational Creditor for the period stated in the petition. 14. The petition is otherwise complete in all respects. 15. We have gone through the pleadings of the parties and heard the Ld. Counsel for the Operational Creditor because the Ld. Counsel for the Corporate Debtor had stopped appearing before the Court. There does not seem to any defence available to the Corporate Debtor for its default in pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); d) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. v) The supply of essential goods or services rendered to the corporate debtor as may be specified shall not be terminated, suspended, or interrupted during the moratorium period. vi) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. vii) The order of moratorium shall have effect from the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The Operational Creditor/Applicant is directed to deposit ₹ 50,000/- (Rupees Fifty Thousand only) with the IRP appointed hereinabove within three days from this order. IRP can claim the preliminary expenses and fees subject to the approval by the CoC and after constitution of CoC. 16. Registry is hereby directed to communicate the order to the Operational Creditor, the Corporate Debtor, the I.R.P. and the jurisdictional Registrar of Companies by Speed Post as well as through email. 17. List the matter on 12/05/2022 for filing of Progress Report. 18. Certified copy of the order may be issued to all the concerned parties, if applied for, upon compliance with all requisite formalities. Order signed on the 21st day of March ..... X X X X Extracts X X X X X X X X Extracts X X X X
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