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2019 (5) TMI 1959 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI.Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - amount deposited as security deposit - Operational Debt or not - existence of debt and dispute or not - HELD THAT:- As per Part-IV of Form 5, the principal amount due stated to be Rs.1,20,00,000/- and the date on which the amount became due is stated to be 21.09.2015. it is stated in Part-V that as per the terms of the LOI, interest free deposit inter alia of three months rental was payable within 7 days of signing the LOI and that pursuant to the condition, the Operational Creditor deposited a sum of Rs,1,20,00,000/- as deposit with the Corporate Debtor, being equivalent to three months of rent through RTGS on 08.09.2015. Whether the deposit amounting to Rs,1,20,00,000/- is an Operational Debt as defined in Section5(21) of the Code? - HELD THAT:- The Learned Counsel for the Operational Creditor has pleaded that the amount of Rs.1,20,00,000/- was not an interest free deposit but an advance for providing consultancy, architectural design and furnishing services to the Operational Creditor. Clause 7 of the LOI clearly provides for an interest free security deposit (IFSD) equivalent to six months rental of which part deposit equivalent to three months’ rent is payable within 7 days of signing the letter of intent. The rental per month as per Clause 4 of the LOI is Rs.48 Lacs including Rs.8 lacs toward maintenance charges - the IFMS in respect of maintenance charge is separately provided for and is also payable when the maintenance agreement is executed. In these circumstances, three months’ rent as IFSD comes to Rs.40 lacs per month x 3 = Rs.1, 20, 00,000/-. It is accepted in Part V of form 5 (Para 1(iv)) that pursuant to the condition of the IFSD, the Operational Creditor deposited a sum of Rs.1,20,00,000/-. Therefore, the plea of the Learned Counsel for the Operational Creditor that the amount of Rs.1,20,00,000/- is not IFSD and an actually an advance cannot be accepted. Thus, the plea of the Learned Counsel for the Operational Creditor that there was an advance of Rs.1,20,00,000/- in respect of provision of goods or services by the Corporate Debtor cannot be accepted - In view of the decision taken about that the amount of Rs.1,20,00,000/ is not an Operational Debt, the claims of the two parties regarding refund/forfeiture of the IFSD are not being examined. Similarly, the application for condonation of delay in filing the application under Section 9 of the Code as well as the issue of the limitation are not examined. Thus, it is held that the amount of Rs.1,20,00,000/- is not proved to be an operational debt and therefore, the application under Section 9 of the Code is rejected.
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