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2019 (9) TMI 414 - Tri - Insolvency and BankruptcySeeking to initiate Corporate Insolvency Resolution Process - whether outstanding amount is free from dispute? - HELD THAT:- Petitioner that the Respondent is doing its business in the leased premises. Even though notice was issued as early as 2.08.2017, the Petitioner failed to take any action as threatened except issuing another Demand Notice dated 25.10.2018. Respondent, admittedly raised substantial dispute, in terms of Lease Deed in question and the Petitioner, even prior to the issue statutory Demand notice in question. There are serious allegations made against the Petitioner saying that the Building in question was constructed illegally and it was not issued even occupancy certificate and criminal proceedings too was initiated against the Petitioner for cheating, mischief etc., and stated to be pending. Petitioner did not prove that it had complied with all the obligations cast upon it in the Lease Deed to claim rents on the premises in question. Petitioner has alternative remedy to initiate eviction and recovery proceedings by terminating the lease in question as mentioned in their legal notice, as referred to above. However, the Petitioner chose to invoke provisions of Code without substantiating that they are entitled to claim for the alleged rent accrued. They have also not stated as to how period of 45 days exemption of rent and the Advance of ₹ 35 Lakhs deposit were treated. Petitioner has not produced any evidence to show that the lease premises were delivered to Lessee as per the terms and conditions mentioned in the Lease Deed in question. Moreover, the Petitioner failed to attend the defects as pointed out by the Respondent in their reply. Main lease deed was executed by and between the Operational Creditor and M/s. New Deccan International. The prime responsibility lies on M/s. New Deccan International, and subsequently only, they have executed amendment lease deed executed on 05.04.2017. The amendment lease deed only refers all terms and conditions as mentioned in the Lease deed dated 10.12.2015 except the Rent would be paid by the present Corporate Debtor. However, the Petitioner chose to file the present case only against one of them absolving original Lessee i.e. M/s. New Deccan International. Proceedings under provisions of Code are summary in nature and disputed questions fact and law cannot be gone into under it. In the instant case, the terms and conditions as per the Lease Deed in question are not complied with by the Petitioner, especially with regard statutory permission, occupancy Certificate etc., to claim any rent under the Deed. Whether the Petitioner is entitled to claim rents on the leased property itself is in dispute and the Respondent has also raised prior dispute. Therefore, proceedings initiated by the Petitioner under the Code are misconceived and the Petitioner also failed to make out any case that the outstanding amount is free from dispute and the claimed amount is also varying and not correlated as detailed supra. Therefore, the petition is liable to be dismissed.
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