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TMI Blog2022 (10) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... vocates For the Respondent : Ms. Priya Soni , Advocate JUDGMENT Justice Anant Bijay Singh ; The present Appeal has been filed by the Appellant under Section 61(1) of the Insolvency and Bankruptcy Code, 2016 (for short IBC) being aggrieved and dissatisfied by the order dated 31.05.2021 passed by the Adjudicating Authority (National Company Law Tribunal, Principal Bench, New Delhi.) in C.P. (IB) No. 1106(PB)/2020, whereby and whereunder the Appellant filed Application under Section 7 of the IBC for initiation of Corporate Insolvency Resolution Process (for short CIRP) against the Corporate Debtor / Respondent herein on the ground that Corporate Debtor defaulted in repaying the Arbitral Award dated 10.07.2019, amounting to Rs. 55,37,797/- (i.e. monthly license fee from April 2007 to October 2009) and due license fee from November 2009 to 15th July 2015, with interest of 6% per annum, aggregating to Rs. 3,14,36,864/- as on 11.10.2019. By which the Adjudicating Authority dismissed the Application filed by the Appellant. 2. The facts giving rise to this Appeal are as follows: i) The Appellant Financial Creditor is a multi-state Co-operative Society formed and regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose between the Appellant and Respondent which was referred for arbitration, which culminated in Arbitral Award dated 10.07.2019 passed by the Sole Arbitrator. In terms of the said Arbitral Award, the Respondent is liable to pay to the Appellant a sum of Rs. 55,37,797/- (i.e. monthly license fee from April 2007 to October 2009) and due license fee from November 2009 to 15th July 2015 and interest @ 6% per annum from 01.04.2007 to 15.07.2015, as the Corporate Debtor continued to hold the possession of the said premise for the period mentioned above. vi) Further case is that the Appellant requested the Registrar Cooperative Societies for getting back possession of the said premise and the Registrar Cooperative Societies further requested the Ld. District Collector, Alwar to pass orders directing the Corporate Debtor/Respondent to vacate the said premise and give back the possession to the Appellant. Consequently, the Appellant got back the possession of the said premise on 15.07.2015. vii) Further case is that despite the award being passed on 10.07.2019 and the same becoming enforceable on expiry of a period of 90 days thereafter, the Corporate Debtor failed to make the paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and expressions used in the IBC can be found defined in the Acts mentioned in the Section, they can be directly imported. This Appellate Tribunal held that the definition of Service and Activities cannot be imported from the Consumer Protection Act, 2019 and the Central Goods and Services Tax Act, 2019 as both the Acts do not find a mention in Section 3(37) of the Code. Further, on the parameter of interpretation of statutes, this Appellate Tribunal analysed Section 5(8)(d) of the IBC, which while defining financial debt says that it includes the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standard or such other accounting standards as may be prescribed . Accordingly, this Appellate Tribunal held that a perusal of the above definition makes it clear that the legislature was conscious of liabilities arising from lease and made specific provision to club it under a financial debt, but no such provision was made for operational debt. 6. It is further submitted that the Hon ble Supreme Court in the case of Dena Bank (now Bank of Baroda) Vs. C. Shivakumar Reddy Anr. (Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the Learned Sole Arbitrator vide para 21 clearly held as follows: . The agreement clearly mentions leave and licence agreement and it was revoked by notice dated 24.08.2007 issued by claimant s advocate. So this is a leave and licence Agreement. The objection w.r.t use of the word Rent is not tenable. 11. It is further submitted that Leave and License Agreement dated 03.07.2006 was the core base transaction between the parties on the basis of which Arbitration Award dated 10.07.2019 was passed. This Leave and License Agreement does not qualify to be Lease/Financial Lease/capital Lease in view of the terms and restrictions of the Leave and License Agreement dated 03.07.2006. 12. It is further submitted that the facts and circumstances of the present case is squarely covered by the judgment as passed by this Appellate Tribunal in the case of Sushil Ansal Vs. Ashok Tripathi and Ors., Company Appeal (AT) (Ins.) No. 452 of 2020 (3 Member Bench) wherein this Appellate Tribunal in paragraphs 20 and 23 clearly held as follows: 20. A decree-holder is undoubtedly covered by the definition of Creditor under Section 3(10) of the I B Code but would not fal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim to be allottees of a Real Estate Project after issuance of Recovery Certificate dated 10th August, 2019 by UP RERA directing recovery of Rs.73,35,686.43/- due thereunder as arrears of land revenue by the Competent Authority. On their own showing they are the decree-holders seeking execution of money due under the Recovery Certificate which is impermissible within the ambit of Section 7 of the I B Code . Clearly their application for triggering of Corporate Insolvency Resolution Process is not maintainable as allottees. (ii) Decree-holder, though included in the definition of Creditor , does not fall within the definition of Financial Creditor and cannot seek initiation of Corporate Insolvency Resolution Process as Financial Creditor . Based on these submissions, the Adjudicating Authority has rightly passed the impugned order, therefore, there is no merit in the present Appeal, the Appeal is fit to be dismissed. FINDINGS 13. After hearing the parties and going through the pleadings made on behalf of the parties as also the impugned order dated 31.05.2021, we are of the view that the Adjudicating Authority has rightly held that the basic nature of tran ..... X X X X Extracts X X X X X X X X Extracts X X X X
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