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TMI Blog2022 (8) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings never commenced - The CD has not produced details of any payment made to OC in respect of monthly rent, etc. Thus, in the opinion of this Tribunal operational debt and default is established. In result, going by the facts and circumstances of the case and the material on record, this petition is admitted. The application filed by the operational creditor under section 9 of the Insolvency and Bankruptcy Code, 2016 is hereby admitted for initiating the corporate insolvency resolution process against Coppertun Brewing P. Ltd. - moratorium declared. - C. P. (IB) No. 61/CB/2021. - - - Dated:- 12-5-2022 - P. Mohan Raj (Judicial Member) And Satya Ranjan Prasad (Technical Member) For the petitioner : Sandeep Bajaj For the Respondent : Mohit Agarwal ORDER 1. The present petition has been filed under section 9 of the Insolvency and Bankruptcy Code, 2016 ( Code for brevity) by Pardesi Constructions P. Ltd., the operational creditor herein, to initiate corporate insolvency resolution process (CIRP) against the corporate debtor, Coppertun Brewing P. Ltd., for alleged default in payment of operational debt to the tune of Rs. 7,66,52,157.50 under the service a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng arbitration proceedings between the parties, having commenced between them as per section 21 of the Arbitration and Conciliation Act, 1996 ; (c) Rental dues do not within the purview of operational debt . (d) The leave and licence agreement and service agreement were entered into by making false representations, suppressing the fact that the premises did not have fire clearance certificate, nor occupancy certificate, required for running of the business of the respondent. There is no admit ted claim and there is a genuine pre-existing dispute as per the facts on record. 5. On the above contentions of the respondent the pointwise submissions made by the OC are as follows : (6) On pre-existing dispute (i) The corporate debtor has in reply raised certain allegations for non-compliance of the terms of leave and licence agreement dated October 5, 2015 however, no dispute has been raised for services provided by the operational creditor under the terms of service agreement dated October 3, 2015. And even the disputes raised by the corporate debtor are primarily on the count of OC not having requisite occupancy certificate and NOC from the Fire Department. However, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same is not arbitrable. (5) The application is within limitation The petitioner claims that the due amount of Rs. 7,66,52,157.50 constitutes the arrears of rent plus arrears of service charges and arrears of maintenance. The due amount consists of three components which are (i) rent (ii) service charges (iii) maintenance, all the said three amounts are payable on or before 10th of every calendar month. The date of default mentioned in the petition is April 17, 2021. The dues have been calculated from December, 2015 to March, 2021. Further, the petition has been filed on September 14, 2021. The respondent argued that since due amount is claimed from December, 2015 the petition ought to have been filed on or before December 10, 2018 to meet limitation but the petition is filed on September 14, 2021 hence, this petition is barred by limitation in view of article 137 of the Limitation Act, 1963. In this regard petitioner stated that the default in payment of monthly rent is continuing from the inception of tenancy till the date of filing of this petition, hence as per section 22 of the Limitation Act, the petition is filed in time, section 22 of the Limitation Act, 1963 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate debtor has rejected the invocation of the arbitration clause. (iv) When the operational creditor issued notice on April 17, 2021 to comply with the agreements, the corporate debtor did not respond to the notice and did not say that any arbitration is pending. When the operational creditor issued the demand notice on August 11, 2021 in its reply dated August 24, 2021 it did not mention that any arbitration is pending. As per provisions of section 8(2) of the Code, the corporate debtor ought to have mentioned the fact regarding any pending suit or arbitration in its reply and that too within the statutory time limit. 7. Dues payable under leave and licence agreement not operational debt The corporate debtor put forth the plea that the rent due payable under the lease or leave and licence agreement is not an operational debt hence, this petition is not maintainable. In support of their claim, they relied on M. Ravindranath Reddy v. G. Kishan [2020] SCC Online NCLAT 84 where it is held that dues in the nature of rent of immovable property do not fall under the head of operational debt, but in Anup Sushil Dubey v. National Agriculture Co-operative Marketing Federation of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been convincingly responded to by the OC. The corporate debtor could not establish that the leave and licence agreement executed on October 5, 2015 and the service agreements dated October 3, 2015 were terminated earlier and they have handed over peaceful possession of the premises to the OC. The corporate debtor vide its e-mail dated August 31, 2020 has rejected the invocation of arbitration clause. Thus, the arbitration proceedings never commenced. 9. The CD has not produced details of any payment made to OC in respect of monthly rent, etc. Thus, in the opinion of this Tribunal operational debt and default is established. In result, going by the facts and circumstances of the case and the material on record, we are inclined to admit this petition. 10. The operational creditor has not suggested the name of any interim resolution professional. Therefore, this Tribunal appoints Mr. Rahul Mishra (Registration No. IBBI/IPA-001/IP-P-02556/2021-2022/13880) residing at Rahul Mishra and Associates, Chartered Accountants, Mishra Bhawan, Tatyapara Chowk, Behind Shivaji Statue, Raipur Chhattisgarh-492 001 and e-mail id [email protected] for interim resolution professional, liquid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n till the completion of the corporate insolvency resolution process. (vii) Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of the corporate debtor under section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. (viii) Necessary public announcement as per section 15 of the IBC, 2016 may be made by the resolution professional upon receipt of the copy of this order. (ix) Mr. Rahul Mishra having (Registration No. IBBI/IPA-001/IP-P-02556/2021-2022/13880) and e-mail id : [email protected] residing at Rahul Mishra and Associates, Chartered Accountants, Mishra Bhawan, Tatyapara Chowk, Behind Shivaji Statue, Raipur, Chhattisgarh-492 001 is appointed as interim resolution professional registered with the ICSI Insolvency Professionals Agency, as interim resolution professional for ascertaining the particulars of creditors and convening a meeting of committee of creditors for evolving a resolution plan subject to production of written conse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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