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TMI Blog2022 (9) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... s, as in the instant case, will be covered under operational debt within the meaning of section 5(21) of the Code. In the instant matter, the Corporate Debtor has established that there were existing disputes in relation to the debt before the receipt of the demand notice by the Corporate Debtor. Further, the Operational Creditor was notified of such pre-existing disputes by the Corporate Debtor in its reply to the said demand notice - In the instant matter, the Operational Creditor has failed to satisfy the Adjudicating Authority regarding the insolvency of the Corporate Debtor and therefore the need to initiate insolvency resolution process against it. This Adjudicating Authority is satisfied that the instant petition is liable to be rejected - petition dismissed. - CP ( IB ) No. 1369/KB/2019 - - - Dated:- 30-8-2022 - Shri Rohit Kapoor , Member ( Judicial ) And Shri Balraj Joshi , Member ( Technical ) For the Operational Creditor : Mr. Shuvashish Sen Gupta , Advocate Mr. Balarko Sen , Advocate Mr. Suvrodal Choudhary , Advocate For the Corporate Debtor : Mr. Udit Agarwal , Advocate ORDER Balraj Joshi , Member ( Technical ) : 1. This Court conv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Code. Such notice was duly received by the Corporate Debtor on 10.05.2019. 5.6 After the expiry of the prescribed period of 10 days from the date of the receipt of the said notice, the Corporate Debtor replied to the same on 20.05.2019 without any bona fide and genuine defence. 5.7 The total amount due and payable by the Corporate Debtor to the Operational Creditor is ₹42,75,912/-. 6. Submissions on behalf of the Corporate Debtor: 6.1 The Corporate Debtor has claimed that the document on the basis of which the Operational Creditor has filed the instant petition is not a registered deed and therefore, is not binding upon the Corporate Debtor. Further, the clause 11 of the said Agreement also provides that the Memorandum of Agreement along with Deed of Lease should be registered, which has not been registered yet. 6.2 Further, the Corporate Debtor has entered into an agreement with the Operational Creditor on 24.11.2016 under which the Operational Creditor was bound to provide certain facilities and services as mentioned in the said agreement, which the Corporate Debtor had failed to perform from time to time. 6.3 The Corporate Debtor had raised a disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deed of Lease dated 24th November, 2016 and the Memorandum of Understanding dated 24th November, 2016. The parties herein have duly acted upon the terms and conditions of the said Deed of Lease dated 24th November, 2016 and the Memorandum of Understanding dated 24th November, 2016. The Corporate Debtor had paid the rent as well as the service charges and the maintenance till July, 2017. The non-registration of the Lease Deed will not allow the Corporate Debtor to make any defaults in payment of rent as well as service charges and maintenance charges. In any event, the Corporate Debtor has admittedly defaulted in making payments for the services availed by the Corporate Debtor. 9. The Corporate Debtor has also admitted that the outstanding amount is due and payable for the services provided by the Operational Creditor to the Corporate Debtor and that the same is an Operational Debt as provided under section 5 (20) of the Code. 10. There is no pre-existing dispute regarding the payment of rent, service charges and maintenance charges, and therefore, at this juncture, the existence of the Corporate Debtor in the commercial world is dangerous and this Tribunal may be pleased to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulture Co-operative Marketing Federation of India Ltd. and Ors. Anup Sushil Dubey vs. National Agriculture Co-operative Marketing Federation of India Ltd. and Ors. (07.10.2020 - NCLAT) : MANU/NL/0369/2020 wherein the NCLAT held that: Therefore, keeping in view, the observations made by the Hon'ble Supreme Court in Para 5.2.1 of Mobilox (Supra), and having regard to the facts of the instant case this Tribunal is of the earnest opinion that the subject lease rentals arising out of use and occupation of a cold storage unit which is for Commercial Purpose is an 'Operational Debt' as envisaged under Section 5 (21) of the Code. Further, in so far as the facts and attendant circumstances of the instant case on hand is concerned, the dues claimed by the First Respondent in the subject matter and issue, squarely falls within the ambit of the definition of 'Operational Debt' as defined under Section 5 (21) of the Code. (Para 22) 18. Further, the same decision has been reiterated by the Hon ble NCLAT in the case of Jaipur Trade Expocentre Private Limited Vs. Metro Jet Airways Training Private Limited Jaipur Trade Expocentre Private Limited vs. Metro Jet Airw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y with the requirements of Section 35 of the Stamp Act, if not stamped, as a document cannot be received in evidence even for collateral purpose unless it is duly stamped or duty and penalty are paid under Section 35 of the Stamp Act. (See also Firm Chuni Lal Tukki Mal v. Firm Mukat Lal Ram Chanda10 and Chandra Sekhar Misra v. Gobinda Chandra Das11 ). 30. For the reasons aforementioned, there is no merit in this appeal which fails and is dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. 21. In light of the law laid down by the Hon ble Supreme Court in Avinash Kumar Chauhan (Supra), the lease agreement executed between the parties on 24.11.2016 as produced on record, cannot be taken into account while determining the alleged debt. 22. Further, the Corporate Debtor has placed on record, several emails sent to the Operational Creditor, between the period of 17.02.2017 to 07.09.2017, all referring to the inconvenience faced by the Corporate Debtor due to the non-maintenance and non-repair of the leased premises, and requesting the Operational Creditor to take remedial steps regarding the same. The Operational Cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. (Para 40) 25. Also, in M/s S.S. Engineers vs. Hindustan Petroleum Corporation Ltd. Ors Civil Appeal No. 4583 of 2022, decided on 15.07.2022 , the Hon ble Supreme Court again held that: 15. In our considered view, the Adjudicating Authority (NCLT) committed a grave error of law by admitting the application of the Operational Creditor, even though there was a pre-existing dispute as noted by the Adjudicating Authority. 16. When examining an application under Section 9 of the IBC, the Adjudicating Authority would have to examine (i) whether there was an operational debt exceeding Rupees 1,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from CD by Appellant on 22nd July, 2019). Hence, it meets the criteria of Section 9 of the Code for raising the dispute. As in the circumstances stated above, this is not a moonshine defence. In light of the above decision, the late reply to the Demand Notice by the Corporate Debtor in the instant matter is condoned. 29. The Hon ble NCLAT, in Subhash Chandra Goyal Sole (Supra), has further opined that the Insolvency and Bankruptcy Code is not intended to be a substitute for a recovery forum and that whenever there is existence of real dispute, the IBC provisions cannot be invoked. (Para n) 30. Furthermore, the Hon ble NCLAT in Subhash Chandra Goyal Sole (Supra), has also held that the Code cannot be used whenever the intention is to use the Code as a means for chasing of payment or building pressure for releasing the payments.(Para n) 31. In the instant matter, the Operational Creditor has failed to satisfy the Adjudicating Authority regarding the insolvency of the Corporate Debtor and therefore the need to initiate insolvency resolution process against it. 32. Therefore, in light of the abovementioned judgments and circumstances, this Adjudicating Authority is s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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