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TMI Blog2022 (9) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... UNAL PRINCIPAL BENCH, NEW DELHI] wherein it has been laid down that an interest free security deposit received in respect of a lease or licence transaction with regard to an immovable property will qualify as an operational debt under IBC. On consideration of submissions of the Operational Creditor for the claims towards the advance payment made as Security Deposits, it appears that the same shall also fall within the ambit of the definition of operational debt and the applicant will qualify as an Operational Creditor in terms of section 5(20) of the Code - Since the Corporate Debtor has chosen not to avail the due and sufficient opportunity of being heard as granted on various dates, the averments of the applicant stating that there is a 'debt' which the corporate debtor was liable to pay but failed to do so, remain unrebutted. Therefore, this Adjudicating Authority has no other option but to admit the Corporate Debtor into CIRP under the provisions of the Code. Application admitted - moratorium declared. - IB-1084/ND/2019 - - - Dated:- 12-8-2022 - Bachu Venkat Balaram Das , Member ( J ) And Dr. Binod Kumar Sinha , Member ( T ) For the Appellant : Ankur Kum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice no. 702/B Konnectus Bhavbhuti Marg, New Delhi. Post execution of the MOU; PPIL, PIL and HDFC ERGO initiated negotiation on the terms and conditions of the sub-license agreement. During the course of negotiation, PIPL and PIL impressed Upon HDFC ERGO to pay 50% of the refundable security amounting to Rs. 27,10,656/- and on 16th June, 2017, HDFC ERGO paid a sum of Rs. 27,10,656/- i.e. 50% of the security deposit of Rs. 54,21,312/- through NEFT to PIPL. Post concluding the terms and conditions of the sub-license Agreement, PPIL and HDFC ERGO entered into a sub-license agreement dated 19th July, 2017 and proceeded for registration of the sub-license agreement. e. It is further averred that meanwhile DMRC has already issued a 'Notice to cure cum Termination Notice' dated 27th June, 2017 to PIL giving 30 days to pay the dues and cure all material defaults. However, due to failure of PIL and PIPL to pay the dues and cure material defaults, DMRC vide another notice dated 17th August, 2017 gave another opportunity to PIPL to clear all dues and material defaults. However, due to lack of compliance to the terms of the aforementioned notices, DMRC terminated the said Concessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debtor has not repaid the amount of default till date even after persistent reminder and notices. 3. Notice was issued to the Corporate Debtor on 10.07.2019. Service was duly effected. The matter was listed on various dates i.e. 10.03.2021, 31.08.2021 and 09.11.2021. However there was no appearance and no averments were made by the Corporate Debtor in this matter and on 09.11.2021, the matter was proceeded as ex parte. The matter was once again listed on 06.04.2022 and was finally heard on 08.07.2022. As the Corporate Debtor remained ex-parte, we have to decide this application without the benefit of their assistance. 4. We have heard the arguments advanced by Ld. Counsel for the Operational Creditor and also perused the record. 5. The Operational Creditor's claim is based on the fact that a sum of Rs. 27,10,656/- was paid by the Operational Creditor to the Corporate Debtor as 50% refundable security deposit for sub-licensing office space at tower -2, 702/B Konnectus Bhavbhuti Marg, New Delhi in terms of MOU dated 30th March 2017, which could not be acted upon due to failure on the part of Corporate Debtor to hand over the said office space on account of termination o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unded at the end of 3 years i.e. once the entire payment of 3 years is received under no circumstances shall be adjusted to the licensee at the end of 3 years. In case both parties wish to extend the contract then agreement can be extended with mutual consent. 6. The payment of Rs. 32,43,000/- is contemplated to be payment of interest free deposit towards advance license fee although it was contemplated to be retained as security deposit till the end of the lease period. Present is a case where although Agreement took place between the parties but the project could not take off and it was abandoned. Learned counsel for the Appellant disputes the fact that the project was abandoned. He says that it is matter of dispute. Be it as it may. It is for the Appellant to take remedies out of the agreement and it is open for the parties to take legal proceedings as permitted in law. In view of the fact that the payment made was initially towards the advance license fee it was an operational debt, the Adjudicating Authority has rightly admitted the application under Section 9. 9. In the light of the decision referred to supra, when we consider the submissions of the Operational C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property by an owner or lessor where such property is occupied by or in the possession of the Corporate Debtor. e. The below section - 14 (1) also stipulates that notwithstanding anything contained in any other law for the time being in force, a licence, permit, registration, quota, concession, clearance or a similar grant or right given by the Central Government, State Government, local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, shall not be suspended or terminated on the grounds of insolvency, subject to the condition that there is no default in payment of current dues arising for the use or continuation of the license, permit, registration, quota, concession, clearances or a similar grant or right during the moratorium period . 13. The supply of essential goods or services of the said project of Corporate Debtor shall not be terminated, suspended or interrupted during moratorium period. The provisions of sub-section (1) of section 14 of IBC, 2016 shall not apply to such transactions, as notified by the Central Government. 14. The IRP shall comply with the provisions of Sections 13(2), 15, 17 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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