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2022 (3) TMI 362 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Adjudicating Authority in the Impugned Judgment after noticing that claim of the Appellant arises out of a License Agreement under which Respondent has right to use immovable property, held that the claim arising out of grant of licence to use immovable property does not fall in the category of goods and services - the agreement clearly proves that immovable property was taken on license by the Corporate Debtor with effect from 1st June, 2017 for payment of license fee of ₹ 4 Lacs per month. The premises were obtained by the Corporate Debtor for commercial purposes for running an Educational Institute. The Application was filed by the Appellant due to outstanding dues arising out of License Agreement dated 15th April, 2017. Apart from the part payment for license fee for few months, the Corporate Debtor defaulted in making the payment of license fee. Tow cheques which were issued 20 Lacs each by the Corporate Debtor on 07th May, 2018 and 08th October, 2018 were dishonoured. The Adjudicating Authority in its Order had stated that since the Appellant has allowed the Respondent to use its immovable property to carry out business, it does not fall in the category of goods and services including employment. The claim of the Appellant under Section 9 of the Code arising out of liability which fell on the Corporate Debtor to make the payment of License Fee as agreement dated 15th April, 2017 when the License Fee having not been paid it was clearly “debt” which was in default. There being two divergent opinions of this Tribunal, it is necessary that an authoritative pronouncement be made with regard to the issues which has been raised i.e. whether License Fee pertaining to immovable premises taken by Licensee from Licensor for running commercial activity i.e. Educational Institute fall within the definition of ‘Operational Debt’ - the matter needs to be placed before the Hon’ble Chairperson on administrative side for constitution of a ‘Larger Bench’ to resolve the conflict. Let the matter be placed before the Hon’ble Chairperson on administrative side to constitute a Larger Bench for an authoritative Pronouncement - following two questions are framed for consideration before the ‘Larger Bench’: i. Whether the Judgment of this Tribunal in Company Appeal (AT) (Ins.) No. 331 of 2019 in the matter of ‘Mr. M. Ravindranath Reddy Vs. Mr. G. Kishan & Ors.’ Lays down the correct law. ii. Whether claim of the Licensor for payment of License Fee for use and occupation of Immovable Premises for commercial purposes is a claim of ‘Operational Debt’ within the meaning of Section 5(21) of the Code.
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