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TMI Blog2024 (7) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... Trade Expo Centre [ 2022 (7) TMI 241 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] , it is well settled that payment of license fee for use of leased premises for business purposes is clearly an operational debt. A conjoint reading of Sections 5(20) and 5(21) of IBC also clearly establishes that tenancy and lease rent dues fall in the category of operational debt as defined under Section 5(21) of IBC. It was the sole responsibility of the Lessee to pay the conversion charges. In view of the above, the contention of the Corporate Debtor that in their email of 18.01.2018 they had raised the omission committed on the part of the Operational Creditor does not stand to reason. There are no cogent reasons to disagree with the Adjudicating Authority that this email constitutes a feeble ground to establish a pre-existing dispute - prima facie it is an undisputed fact that the legal notice dated 22.10.2019 was served after the filing of the Section 9 application and therefore cannot qualify as a pre-existing dispute. This lends credence to the contention of the Operational Creditor that this legal notice was served as an after-thought with mala fide intention to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or due consideration are as hereunder: A Lease Agreement was entered between the Lessors-Late Shri Ram Prakash Sachdeva and Late Smt. Chand Sachdeva on 28.08.2016 with the Lessee/Corporate Debtor - Haldiram Fincap Pvt Ltd. ( HFPL in short) in respect of leased property at Paharganj, New Delhi. On the death of Late Shri Ram Prakash Sachdeva and Late Smt. Chand Sachdeva, their son, Mr. Sunil Sachdeva Respondent No. 1 claimed the status of legal heir of the original lessors. The Lease term was a period of 12 years from 28.08.2016 to 27.08.2028. The Lease Agreement was purportedly assigned by HFPL to Haldiram Bhujiawala Inc ( HBI in short) on 16.12.2016. On the grounds of non-receipt of rent and GST, the Respondent No. 1 served a notice on the HFPL - Corporate Debtor on 05.02.2019 for an amount of Rs. 52.64 lakhs which was followed up by a notice of termination of lease on 28.04.2019 claiming a default amount of Rs. 85.44 lakhs. However, no payments were received from the Corporate Debtor. Subsequently a Demand Notice under Section 8 of IBC was issued on 17.09.2019 by the Respondent No. 1 on the HFPL - Corporate Debtor claiming an amount of Rs. 94.66 lakhs. It has been alleged that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... details of payment of conversion charges to Municipal Corporation of Delhi (MCD) which was needed to get health license for commercial usage of the property in terms of Para 9.1 of the Lease Deed. As the Respondent No. 1 had failed to provide the documents needed to get the health licence, HBI was unable to commence its business operations from the leased premises. A legal notice was also sent on 22.10.2019 by the HFPL to the Respondent No.1 intimating that due to failure to make payment of commercial conversion charges and other property/municipal taxes, they have not been able to do business in the leased premises. Since HBI had to suffer huge financial losses on this count and had to close their operations from the property, they had also filed a Commercial Civil Suit No.2519/22 before the District and Sessions Judge, Tis Hazari Courts, Delhi for recovery of Rs.1.50 cr towards loss along with interest which according to the Learned Counsel for the Appellant clearly substantiates the existence of pre-existing disputes between the parties. 7. Further assertion was made that Respondent No. 1 had taken forceful possession of the property in January, 2019 from the Corporate Debtor an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of conversion charges, it was submitted that the lease deed clearly outlined the responsibility for payment of conversion charges for commercial activity on Respondent No.2, which action was not taken by Respondent No.2. It was contended that Respondent No.1 cannot be blamed for the lapse on the part of the Corporate Debtor of not paying the conversion charges. It was stoutly contended that non-payment of conversion charges cannot be deemed to be a ground for pre-existing disputes. It was also added that the legal notice dated 22.10.2019 which had been sent by the Corporate Debtor cannot qualify as evidence of pre-existing disputes since the notice was served after filing of the Section 9 application and hence an after-thought. In any case, the Respondent No.1 had responded to the said legal notice on 28.11.2019. Even the Commercial Suit filed by Respondent No.2 in February, 2020 was so filed after the Section 8 Demand Notice and after filing of section 9 application and hence cannot qualify as a pre-existing dispute. 11. We have duly considered the detailed arguments and submissions advanced by the Learned Counsel for both the parties and perused the records carefully. 12. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... khs; Rs.13.59 lakhs as interest amount and Rs.17.47 lakhs as User and Occupation Charges from 01.06.2019 to 30.09.2019. In addition, an amount of Rs.4.48 lakhs per month after deduction of TDS and addition of GST has been claimed till continuance of the occupation of the leased premises. This clearly shows that the Operational Creditor had been consistently pressing for release of their outstanding amount while there is nothing on record to show that the Corporate Debtor objected or controverted the claims raised by the Operational Creditor prior to the issue of Section 8 Demand Notice. The above findings clearly establish that the first two conditions laid down in the Mobilox judgment supra of operational debt exceeding Rs. 1 lakh and having become due and payable but not yet paid is squarely met. 14. This now brings us to the third aspect of the Mobilox judgment supra as to whether any genuine and real pre-existing dispute is discernible in the facts of the present case and before we dwell into the facts before us we feel that it is useful to quote the guiding principles laid down in this judgment as under : 40. It is clear, therefore, that once the operational creditor has filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defined under Section 5(21) of IBC. Further, the question mark raised on the legitimacy of the Operational Creditor to raise the demand qua the Corporate Debtor also lacks force in view of the Respondent No.1 having claimed to have inherited the role of lessor based on registered wills dated 09.10.2013 and 24.08.2016 as placed on affidavit at pages 49-63 of the Reply filed by Respondent No.1. That the death of the deceased parents of the lessor had been communicated to the Appellant on 01.05.2018 and 16.06.2018 is evident from two emails as placed at pages 106-107 of APB. Further, not finding any material on record to show that that these communications were disputed by the Appellant earlier, we are of the considered view that this cannot now be raised as a ground of pre-existing dispute. 17. It is the case of the Respondent No.2 that rent and TDS payments were being made by HBI and hence Respondent No.2-HFPL cannot be considered to be the Corporate Debtor. Moreover, it is contended that when HFPL had assigned the lease to HBI for which the Lessor had given NOC to the assignment, then Respondent No. 1 cannot file the Section 9 application against HFPL. We have therefore perused th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Adjudicating Authority in the impugned order and the findings are as extracted hereunder: 18. We have perused the email dated 18.01.2018, the contents of the said email are extracted below : This is for your kind information that we have trying to last ten days for obtain the MCD Health Licence at MCD Anand Parvat Office. The department has not accepted our request letter due to conversation charges not paid by you against the property. We have lot of tried and ex-plane about the no liability of conversion of this property but the department has not agreed. We are requested is kindly come the MCD office for explain to the officer. On perusal of the said email, we do not think that there is any whisper about any pre-existing dispute. Rather, the said email mentions about obtaining the MCD Health Licence at MCD Health Anand Parvat Office. Therefore, in our view, it cannot be considered to be pre-existing dispute. 21. To ascertain and assess the tenability of the findings of the Adjudicating Authority, it may be constructive to first take notice of the clauses of the Registered Sale Deed entered between the two parties. Clauses 2.3 and 9.1 of the Sale Deed is relevant to be no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or had satisfied themselves regarding usage of the leased premises. The relevant excerpts of the said reply to the Legal Notice reads as under : 8. That your present notice is nothing but a counterblast to the all notices dated 05.02.2019, 28.04.2019 served by our Client upon you calling upon to make payment of monthly lease rent and other charges along with interest. That vide notice dated 05.02.2019 you were called upon to make payment of the rent and interest from 30.08.2018 till 31.01.2019 as per the clause 4 of the said Lease Deed wherein 60 days grace period was given to you to rectify the breach and to make payment, however despite service of the said notice you did not made the payment hence our client was constrained to terminate the said lease vide notice dated 28.04.2019, as per clause 20.2 of the Lease Deed, and you were called upon to make payment of Rs.63,59,500/- as arrears of rent and interest from 30.08.2018 till 31.05.2019 and Rs.9,20,909/- towards interest as on 31.05.2019 and damages to the tune of Rs.12,63,600/- for the period of 31.05.2019 to 31.08.2019. It is further stated that all such requests and reminders of our Client went to deaf ears and you deliberat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the matter became a Non-Starter , the mediation application stood closed. In such circumstances, the claim made by the Corporate Debtor that the commercial civil suit was pending in the Tis Hazari Court lacks foundation. Furthermore, when HFPL on their own accord refused to participate in the mediation process, it cannot now embark on the argument that the mediation application signifies pre-existing dispute. Therefore, we are of the considered view that neither of the two commercial suits can be construed to be a pre-existing dispute. 26. We find that the Adjudicating Authority in the present case has carefully considered the reply and submissions made by the Corporate Debtor and has correctly come to the conclusion that there is no ground to establish any real and substantial pre-existing dispute which can thwart the admission of section 9 application against the Corporate Debtor. We have no hesitation in observing that in the present case there is no real pre-existing disputes discernible from given facts and all other requisite conditions necessary to trigger CIRP under Section 9 stands fulfilled. 27. From the aforesaid discussion and analysis of facts and circumstances, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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