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2022 (9) TMI 171 - NATIONAL COMPANY LAW TRIBUNAL , KOLKATA BENCHMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - whether the outstanding lease rental will be considered as operational debt under the Code or not? - HELD THAT:- Hon’ble National Company Law Appellate Tribunal (NCLAT) in the case of Anup Sushil Dubey vs. National Agriculture Co-operative Marketing Federation of India Ltd. and Ors. [2020 (10) TMI 331 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] where it was held that A dispute does not truly exist in fact between the Parties and, therefore, this Tribunal holds that the communication on record specifically the letter dated 19.09.2018, addressed by the Appellant themselves prior to the issuance of the Demand Notice clearly establishes that there is a ‘Debt due and payable’ and there is no ‘Pre-Existing Dispute’. Thus, this Tribunal, therefore, is satisfied that the outstanding lease rental in case of a property so leased for commercial purposes, 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.
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