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2017 (10) TMI 1066 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHICorporate insolvency procedure - ‘whether there is an existing dispute between the parties before the issuance of notice under Section 8 of the Code?’ and ‘whether the dispute is substantial or it is merely an illusory defence raised by the Corporate Debtor to defeat the process?’ - Held that:- The licensor has been held entitled to recover possession of such premises from the licensee, on the expiry of the period of licensee, by making an application to the Competent authority. In accordance with sub section 2 of Section 24 if a licensee fails to deliver possession of residential premises on the expiry of the period of licensee and continues in possession of the licensed premises then he is liable to pay damages at double the rate of the licence fee or charge of the premises fixed under the agreement of licence. On the one hand there is a serious dispute whether the Corporate Debtor-respondent has vacated the premises comprised of basement, second, third and fourth floor of the licensed premises on 11.04.2016 or it has retained possession of the whole till November, 2016. The property in dispute is commercial in character which is an admitted fact. Therefore, there is a serious dispute with regard to the application of Section 24 to the commercial premises because Section 24 applies only to residential premises as expressly provided. The parties have agreed to abide by the provisions of Section 24 but the Operational Creditor has not invoked any such provision by moving appropriate application before the Competent authority under the Rent Act. Moreover, these disputes have been in existence as the details of dispute are placed on record which date back to 13.01.2017 (Annexure-14), a notice sent by the Operational Creditor to the Corporate Debtor which was duly replied on 06.02.2017 (Annexure-15). There are again notices dated 16.03.2017 and 31.03.2017 (Annexure-16 & 17). Eventually a demand notice dated 03.04.2017 was sent (Annexure-18) which was also replied by the Corporate Debtor on 18.04.2017 which is a notice of dispute sent to the Operational Creditor. Thus on legal submission it is not possible to conclude that Section 24 of the Rent Act would be applicable as it is to apply only to residential premises. On facts also, the issue of oral agreement in January/February as reflected in e-mails; and then vacation of a substantial part of leased premises would need further investigation. We cannot conclude that there is no dispute. Therefore, we are unable to persuade ourselves to accept the contention that the defence raised by the Corporate Debtor is illusory and moonshine. There in fact exists a real and serious dispute which may have to be resolved at an appropriate forum. Thus this application fails and the same is dismissed.
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