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2021 (4) TMI 1305 - Tri - Insolvency and BankruptcySeeking vacation of leased premise owned by the Applicants and hand over vacant possession of the same - whether the Owner/ Lessor of land in actual physical possession of Corporate Debtor can recover the same while moratorium is in effect? - HELD THAT:- In the matter of M/s Navbharat Castings LLP vs. M/s Moserbear India Ltd. & Anr [2018 (7) TMI 2184 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI], the Hon’ble NCLAT was dealing with the issue as to whether the order of moratorium will be applicable to the leasehold property of a Landlord in respect of which the Corporate Debtor is a tenant, particularly after decree of eviction passed in favour of the land lord against the Corporate Debtor, which is similar to the facts of the present case and the finding recorded by the Hon’ble NCLAT in the said matter is on clear terms that the recovery of property by the Owner/ Landlord occupied by the Corporate Debtor during the period of moratorium is not permissible. The order of moratorium takes effect immediately from the insolvency commencement date which is defined under Section 5(12), and the same lasts till the completion of the Corporate Insolvency Resolution Process (CIRP). Under Section 12 of IBC, 2016 the time limit for completion of CIRP is provided as 180 days from the date of admission of application to initiate such process which can be extended for a further period not exceeding 90 days but has to be mandatorily completed within a period of 330 days from the insolvency commencement date including the period of judicial intervention. As to the facts of the present case, it is seen that this Tribunal vide order dated 06.08.2020 has extended the CIRP period of the Corporate Debtor by 150 days including the exclusion of the periods lost due to the lockdowns imposed by the Central / State Governments. Seeking direction to Respondent to pay the Applicants a sum of ₹ 99,12,000/- plus GST for 12 months, plus future rent at ₹ 7,00,000/- plus GST until handing over of the possession of the leased property - HELD THAT:- Eventhough the amount as claimed by the Applicants, for the period of moratorium, has not been paid in full, the Respondent has paid certain sum to the Applicants. In any case, it was submitted by the Learned Counsel for the Respondent that the negotiation talks are going on with the landlords for reduction of rent and also they have planned to downsize the hospitals from 96 centers to 44 centers and as such the cost if any which is due and payable to the Applicants, on account of rent, during the period of moratorium, would fall within the domain of ‘CIRP Costs’. Further taking into consideration the facts of the present case, this Tribunal cannot direct the Respondent to pay the rental arrears due to the Applicants incurred during the period of moratorium - the sum which is due and payable to the Applicants would form part of the CIRP costs. The CIRP costs would be paid in priority even if a Resolution Plan in relation to the Corporate Debtor is approved by this Tribunal or if the Corporate Debtor is ordered for Liquidation. The Corporate Debtor cannot be directed to evict the premises during the period when the moratorium is in force and the rental arrears which is due and payable to the Applicants would form part of the CIRP costs, to be paid in priority be it resolution or liquidation as the case may be - application disposed off.
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